■341. 2.1 3 

ShS 


<^Y\e.'r\e.\\ 


UNIVERSITY  OF  ILLINOIS 

library 


Class 


Book 


Volume 


Ja  09-2OM 


THE  TREATY-MAKING  POWER 


SPEECH 


HON.  SWAGAR  SHERLEY, 

OF  KENTUCKY, 


IN  THE 


HOUSE  OF  REPRESENTATIVES, 


Tuesday,  January  22, 1907. 


-I' 


7084 


WASHINGTON. 
1  907. 


o 


t 


l 


c-P 


SPEECH 

OF 

HON.  SWAGAR  SHERLEY. 


The  House  being  in  Committee  of  the  Whole  House  on  the  state  of  the 
Union  and  having  under  consideration  the  bill  (H.  It  24538)  making 
appropriations  for  the  diplomatic  and  consular  service  for  the  fiscal  year 
ending  June  30,  1908 — 

Mr.  SHERLEY  said : 

Mr.  Chairman  :  There  have  recently  been  made  in  the  House 
and  in  the  Senate  several  interesting  speeches  on  the  extent  of  the 
treaty-making  power  conferred  in  the  Constitution  of  the  United 
States  upon  the  President  and  the  Senate.  In  this  discussion, 
however,  there  has  been  omitted  one  rather  striking  fact  that  I 
desire  to  call  to  the  attention  of  the  committee  before  proceeding 
to  the  larger  discussion  of  the  extent  of  the  treaty-making 
power.  There  is  to-day  no  law  upon  the  Federal  statute  books 
that  enables  the  National  Government  to  punish  violations  of 
treaty  rights  of  aliens.  I  hold  it  to  be  a  position  not  to  be 
controverted  that  to  the  extent  that  there  is  responsibility 
there  ought  to  be  power ;  and  inasmuch  as  the  National  Govern¬ 
ment  can  and  does  confer  rights  upon  aliens,  it  follows  that  it 
should  have  the  power  to  enforce  recognition  of  those  rights 
and  to  punish  any  efforts  to  disregard  them.  If  at  any  time 
some  citizen  of  a  foreign  country  resident  in  America  should 
be  injured  or  his  rights  violated,  the  foreign  country  would  look 
not  to  the  particular  State  where  the  injury  occurred,  but  to  the 
National  Government  for  a  redress  of  the  wrong.  That  has 
been  the  history  in  the  past  and  it  will  be  so  in  the  future. 
When  this  country  was  confronted  by  a  claim  by  Italy,  growing 
out  of  the  disturbances  in  the  State  of  Louisiana,  Italy  declined 
to  receive  the  suggestion  of  the  National  Government  that  that 
was  a  matter  that  should  be  taken  up  with  the  State  of  Louisiana, 
and  while  the  National  Government  did  disclaim  responsibility, 
it  nevertheless  made  payment  in  satisfaction  of  that  claim. 
During  the  term  of  President  Harrison  in  a  message  to  Congress 
attention  was  called  to  this  absence  of  Federal  law. 

He  said  : 

It  would,  I  believe,  be  entirely  competent  for  Congress  to  make 
offenses  against  treaty  rights  of  foreigners  domiciled  in  the  United 
States  cognizable  in  the  Federal  courts.  This  has  not,  however,  been 
done,  and  the  Federal  officers  and  courts  have  ncr  power  in  such  cases 
to  intervene,  either  for  the  protection  of  the  foreign  citizen  or  for  the 
punishment  of  its  slayers. 

President  Roosevelt  has  also  called  attention  to  the  need  for 
this  legislation,  saying  that — 

One  of  the  great  embarrassments  attending  the  performance  of  our 
international  obligations  is  the  fact  that  the  statutes  of  the  United 
States  are  entirely  inadequate.  They  fail  to  give  to  the  National  Gov¬ 
ernment  sufficiently  ample  power,  through  the  United  States  courts 
and  by  the  use  of  the  Army  and  Navy,  to  protect  aliens  in  the  rights 
secured  to  them  under  solemn  treaties  which  are  the  law  of  the  land. 

7084  3 


\ 


4 


So  far  as  his  message  seems  to  call  attention  to  the  need  of 
giving  jurisdiction  to  the  Federal  courts  I  am  entirely  in  accord 
with  him.  So  far  as  he  suggests  the  need  of  giving  powers  to 
the  Army  and  Navy  in  the  matter  I  disagree  with  him,  believ¬ 
ing  that  there  can  be  given  ample  power  to  the  Federal  courts 
to  control  the  situation,  and  I  accordingly  introduced  in  the  early 
part  of  this  session  the  following  bill : 

A  bill  (H.  R.  20540)  punishing  conspiracy  to  injure  or  intimidate  any 

person  in  the  exercise  of  a  right  under  the  Constitution  or  laws  of 

the  United  States. 

Be  it  enetctedx  etc.,  That  if  two  or  more  persons  conspire  to  injure, 
oppress,  threaten,  or  intimidate  any  person  in  the  free  exercise  or  en¬ 
joyment  of  any  right  secured  to  him  by  the  Constitution  or  laws  of 
the  United  States,  or  because  of  his  having  so  exercised  the  same,  they 
shall  he  fined  not  more  than  $5,000,  or  imprisoned  not  more  than  ten 
years,  or  both. 

That  is  an  exact  copy  of  section  5508  of  the  Revised  Statutes, 
except  that  it  changes  the  word  “  citizen  ”  to  the  word  “  per¬ 
son.”  It  was  held  by  the  Supreme  Court,  in  the  case  of  Baldwin 
v.  Frank,  reported  in  120  U.  S.,  678,  that  the  word  “  citizen  ”  in 
that  section  did  not  embrace  an  alien  and  that  an  indictment 
brought  under  that  section  which  charged  certain  men  with  a 
conspiracy  to  deprive  Chinese  aliens,  resident  in  California,  of 
the  right  of  residence  there  could  not  be  sustained,  because  the 
word  “  citizen  ”  was  used  in  the  narrow  sense  of  citizen  of  the 
United  States  or  of  the  States  and  not  in  the  broad  sense  of 
“  person ;  ”  but  the  court  said  that,  while  there  was  no  law 
covering  such  an  offense,  Congress  had  ample  power  to  provide 
for  the  punishment  of  an  offense  against  rights  given  by  treaty 
to  aliens.  Now,  it  is  manifest  that  this  may  become  at  any  time  a 
very  serious  matter.  I  do  not  believe  that  we  need  to  apprehend 
at  present  any  difficulties,  but  the  fact  that  there  has  been  much 
discussion  relative  to  the  rights  under  existing  treaties  of  aliens 
residing  in  America  and  that  there  have  been,  in  certain  parts 
of  the  country,  pronounced  views  relative  to  the  matter,  make 
it  evident  that  there  may  arise  at  any  time  a  situation  where 
irresponsible  men,  disregarding  the  law  and  the  obligations  im¬ 
posed  upon  us  toward  aliens  residing  in  America,  might  commit 
some  act  of  violence,  might  do  something  that  would  involve 
this  nation  in  a  very  serious  controversy  with  some  foreign 
power.  For  this  nation,  then,  to  be  put  in  the  humiliating  posi¬ 
tion  of  being  held  responsible  by  another '  power  for  a  wrong 
done  upon  an  alien  residing  in  America  and  yet  be  unable  to 
punish  the  perpetrators  of  that  wrong  would  be  a  matter  of 
grave  concern  to  us  all  and  place  America  in  a  pitiful  position 
in  the  eyes  of  the  world.  I  am  not  one  of  those  who  believe 
that  the  treaty-making  power  is  unlimited,  and  I  shall  take 
occasion  later  on  to  state  my  views  relative  to  that  power,  but 
I  plant  myself  upon  this  firm  proposition,  that  to  the  extent 
that  we  can  confer  a  right  upon  an  alien,  to  that  extent  the 
National  Government  that  confers  it  ought  to  have  the  machinery 
by  which  it  can  punish  any  violation  of  that  right,  and  I  hope 
that  very  shortly  this  Congress  will  consider  the  advisability 
of  passing  this  or  similar  legislation.  The  bill  is  purposely 
drawn  in  general  terms,  so  as  to  leave  to  the  proper  department 
the  power  to  determine  what  rights  can  be  conferred  by  treaty. 
Under  it  any  man  indicted  would  have  the  right  to  raise  the 
constitutional  question  of  whether  the  right  that  he  is  alleged 
'7084 


5 


to  have  conspired  against  is  such  a  right  as  could  be  conferred 
by  treaty,  and  it  would  thus  enable  the  Supreme  Court  in  any 
given  case  to  determine  how  far  the  treaty  power  goes  and  what 
rights  are  conferred  under  any  particular  treaty,  because  I  do 
not  believe  that  there  is  anyone  now  who  will  seriously  contend 
that  the  Federal  courts  have  not  the  power  to  declare  a  treaty 
unconstitutional,  the  same  as  they  might  declare  any  law  of 
Congress  unconstitutional. 

It  is  true  that  one  of  the  most  recent  writers  on  the  treaty¬ 
making  powers,  a  gentleman  who  has  gathered  together  much 
useful  information  and  data  concerning  it,  does  doubt  that 
power  and  bases  the  doubt  upon  the  fact  that  Judge  Chase,  in 
rendering  the  decision  in  the  case  of  Ware  v.  Hylton,  said  that 
if  the  court  had  the  power  it  would  not  exercise  it  except  in 
a  clear  case ;  and  upon  that  flimsy  ground  he  contends  that  the 
court  itself  has  disposed  of  the  idea  that  it  would  have  such 
power,  forgetful  of  the  fact  that  that  decision  was  rendered 
at  a  time  when  the  Supreme  Court  had  not  determined  its 
right  to  declare  any  law  unconstitutional.  And  of  course  it  is 
manifest  that  in  regard  to  a  treaty,  as  in  regard  to  a  law, 
even  more  so  perhaps,  the  courts  would  be  very  slow  to  declare 
unconstitutional  such  a  solemn  compact.  But  that  it  has  the 
unquestioned  power  no  thinking  man,  acquainted  with  the 
theory  of  our  Government,  can  long  doubt. 

And  this  brings  me  properly  to  a  discussion  of  what  rights 
can  be  conferred,  because  while  I  do  not  believe  that  the  opinion 
gentlemen  may  have  as  to  the  extent  of  the  power  ought  to  in 
any  wise  influence  their  judgment  relative  to  the  proposition 
to  give  the  National  Government  the  power  to  enforce  treaty 
rights,  still  it  is  probable  that  some,  dreading  the  extreme 
power  that  is  claimed  under  the  treaty-making  clause,  would 
hesitate  to  give  to  the  National  Government  the  power  to  en¬ 
force  offenses  against  such  rights,  because  they  think  that 
even  though  the  right  may  exist  it  ought  not  to  be  exercised. 

In  the  House  but  a  few  days  ago  a  very  elaborate  speech 
was  made  by  my  friend  from  Vermont  [Mr.  Foster]  dealing 
with  this  whole,  question.  I  did  not  have  the  pleasure  of  hear¬ 
ing  it,  but  I  have  read  it  with  great  care.  It  is  full  of  learn¬ 
ing,  but  it  proceeds  upon  a  theory  of'  government  to  which  I 
must  give  my  most  emphatic  dissent.  The  gentleman  in  his 
remarks  stated  that  he  considered  that  the  question  of  whether 
the  treaty-making  power  rests  in  sovereignty  or  rests  in  grant 
is  an  immaterial  question,  or,  as  he  puts  it,  an  academic  ques¬ 
tion.  To  my  mind  it  is  a  fundamental  question.  Once  admit 
that  the  treaty-making  power  exists  not  by  virtue  of  the  grant 
in  the  Constitution,  but  as  an  inherent  part  of  the  nationality  of 
the  United  States  Government,  and  you  then  admit  that  there  is 
no  limitation  that  can  be  put  upon  that  power.  If  it  is  true 
the  treaty-making  power  arises  from  the  sovereignty  of  the 
nation,  and  if  it  be  true  that  this  nation  has  all  powers  that 
any  nation  can  possess,  then  it  must  follow  absolutely  that  the 
treaty-making  power  extends  to  every  subject  without  regard 
to  our  division  of  powers  among  the  States  and  the  nation  and 
among  the  different  departments  of  the  nation.  It  follows  for 
this  reason,  because  while  the  Constitution  declares  the  power, 
the  power  is  not  born  of  the  Constitution,  but  is  born  of  a 
right  inherent  in  national  sovereignty. 

7084 


6 


Now,  the  fundamental  mistake  in  that  argument,  as  it  is  in 
many  that  proceed  upon  a  similar  theory,  relative  to  power  in 
the  Federal  Government  not  declared  in  the  Constitution,  is 
that  the  sovereignty  of  the  American  people  rests  in  the 
National  Government.  The  sovereignty  of  the  American  people 
rests  neither  in  the  national  nor  State  governments  nor  in  all 
together.  It  rests  in  the  people,  and  only  to  the  extent  that 
they  have  given  to  the  State  and  to  the  National  Government  a 
part  of  that  sovereignty  do  those  governments  possess  it.  I 
can  not  state  the  case  better  than  to  quote  a  statement  made 
by  Justice  Brewer  in  an  address  before  the  Virginia  Bar  Asso¬ 
ciation,  in  which,  he  says  : 

I  fully  believe  that  this  nation  as  a  nation  has  all  the  powers  which 
any  nation  possesses,  but  I  as  fully  believe  that  those  powers  are 
vested  in  the  people  and  that  only  such  as  they  have  enumerated  in 
the  Constitution  haye  they  granted  to  the  Government. 

And  again,  in  delivering  the  opinion  of  the  Supreme  Court 
in  the  recent  case  of  Hodges  v.  United  States,  reported  in 
203  United  States  Reports,  he  says : 

The  National  Government  still  remains  one  of  enumerated  powers, 
and  the  tenth  amendment,  which  reads,  “  the  powers  not  delegated  to 
the  United  States  are  reserved  to  the  States  respectively  or  to  the 
people,”  is  not  shorn  of  its  vitality. 

In  very  truth  it  may  be  said  that  upon  these  two  statements 
hang  all  the  law  and  the  prophets.  They  represent  to  my  mind 
the  right  theory  of  this  Government.  The  National  Government 
has  only  the  powers  delegated  to  it.  Now,  it  is  true  that  the 
treaty-making  power  is  delegated  in  general  terms ;  but  it  is  not 
the  only  power  delegated  in  general  terms.  It  says  “  that  the 
President  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two-tliirds  of  the  Sen¬ 
ators  present  concur,”  and  it  also  declares  that  “  this  Constitu¬ 
tion  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land.”  In  regard  to  treaties  the  phrase  is  used 
“  under  authority  of  the  United  States,”  and  some  have  claimed 
that  the  words  “  under  authority  ”  give  greater  power  than 
if  the  Constitution  had  said,  as  it  does  in  regard  to  the  laws, 
“  in  pursuance  thereof.”  But  the  reason  for  using  the  phrase 
“  under  authority  ”  is  easy  to  be  ascertained. 

At  the  time  of  the  adoption  of  the  Constitution  there  were 
many  treaties  in  effect.  It  was  desired  to  validate  all  of  these 
treaties  and  give  them  binding  effect  so  far  as  they  were  in 
accord  with  the  theory  of  the  Government  as  set  forth  in  the 
Constitution.  If  it  had  simply  said  “  made  under  the  Consti¬ 
tution  ”  or  “  made  in  pursuance  of  the  Constitution,”  it  would 
have  excluded  treaties  already  in  existence,  and  therefore  there 
was  used  the  phrase  “  under  authority.”  It  was  not  used  in 
the  sense  of  meaning  that  once  you  determine  that  the  Presi¬ 
dent  and  Senate  had  acted  in  making  a  compact  with  a  foreign 
nation  the  question  of  its  validity  could  not  be  raised.  To  as¬ 
sume  that  was  to  assume  that  the  great  fight  in  the  Constitu¬ 
tional  Convention  had  been  waged  in  vain.  They  undertook  to 
counterbalance  the  great  States  with  the  little  ones.  All  the 
States  were  given  equal  representation  in  the  Senate.  They  were 
given  this  as  a  safeguard  against  the  fear  that  the  great  States 
would  soon  swallow  them  up.  But  as  counteracting  that  there 
7084 


7 


was  given  to  the  House  of  Representatives,  which  has  its  repre¬ 
sentation  based  not  upon  the  State  but  upon  population,  the 
exclusive  right  to  raise  revenue  bills,  and  it  was  further  de¬ 
clared  that  no  appropriation  of  money  shall  be  made  except  by 
authority  of  Congress.  Now,  if  the  treaty-making  power  was 
given  supreme  power,  it,  in  its  power,  could  assert  both  of 
these  prerogatives,  and  then  we  would  have  the  Executive  and 
simply  two-thirds  of  the  Senate  (who  might  represent  a  mi¬ 
nority  of  the  people,  because  even  to-day  there  can  be  found 
two-thirds  which  represent  much  less  than  a  majority  of  the 
people)  able  to  enter  into  treaties  with  other  nations,  by  which 
this  vital  right  given  to  the  House  of  Representatives,  to  hold 
the  purse  strings  of  the  nation,  would  be  abrogated  and  done 
away  with. 

Most  students  of  the  Constitution  now  agree  that  the  treaty¬ 
making  power  is  limited  by  this  right  in  the  House  of  Repre¬ 
sentatives,  though  some  insist  that  when  a  treaty  requires  an 
appropriation  of  money  Congress  is  morally  bound  to  make  the 
appropriation,  but  this  House  has  ever  maintained  the  right  to 
freely  decide  for  itself  whether  the  appropriation  should  be  made, 
and  one  has  but  to  read  the  elaborate  reports  of  the  House 
Judiciary  Committee,  written  by  that  great  constitutional 
lawyer,  Randolph  Tucker  (H.  Repts.  Nos.  2680-2721)  to  have  all 
doubts  removed.  And  it  is  also  generally  conceded  that  what 
is  especially  prohibited  by  the  Constitution  can  not  be  done 
under  the  treaty-making  power.  It  is  manifest  that  no  title  of 
nobility  could  thus  be  conferred.  It  may  also  be  considered  as 
settled  that  where  the  right  to  do  a  given  thing  is  given  to  Con¬ 
gress — as  to  coin  money,  regulate  the  militia,  establish  bank¬ 
rupt  laws— Congress  alone  can  act,  and  the  treaty-making  power 
can  not  touch  such  subjects.  But  while  these  limitations  are 
admitted  by  all  save  a  few  extremists,  it  is  now  being  urged 
that  the  tenth  amendment  is  in  no  sense  a  limitation  upon  the 
treaty-making  power.  The  basis  for  this  position  I  am  unable 
to  find.  As  said  by  Mr.  Tucker,  “  The  instant  it  is  admitted  that 
the  power  has  limitations,  even  as  to  what  is  rightfully  subject  to 
it,  the  question  at  issue  is  narrowed  to  determining  all  these 
limits  on  principles  of  justice  and  of  fair  interpretation  of  the 
Constitution.” 

There  is  no  reason  that  is  good  in  logic  that  I  know  of  that 
justifies  you  in  taking  part  of  the  Constitution  as  superior  and 
above  the  rest  of  the  Constitution. 

The  very  fact  that  the  tenth  amendment  was  adopted  after  the 
treaty-making  power  was  conferred  would  indicate  that  it  was 
intended  that  that  power,  along  with  all  national  powers,  was  to 
be  exercised  subject  to  the  reservation  stated  in  the  tenth  amend¬ 
ment.  When  this  amendment  was  proposed  the  friends  of  the 
Constitution  declared  that  it  stated  nothing  that  was  not  already 
the  law,  but  those  who  were  fearful  of  the  power  that  was  being 
given  to  the  National  Government  said :  “  If  that  is  true,  it 
could  do  no  harm,  and  we  insist  on  an  affirmative  declaration; 
and  inasmuch  as  you  have  got  in  the  Constitution  as  already 
drawn  many  affirmative  declarations  of  the  rights  of  the  people, 
we  insist  on  this  additional  one ;  we  insist  that  except  to  the 
extent  power  is  expressly  given  it  is  reserved  to  the  States  and 
people,  respectively.” 

Now,  the  treaty-making  power  is  unquestionably  a  very  exten- 
7084 


8 


f  sive  one.  It  is  unquestionably  true  that  the  very  most  pro¬ 
nounced  evil  in  connection  with  the  Confederacy  as  it  existed, 
aside  from  its  inability  to  tax,  so  necessary  an  attribute  of  a 
^  virile  government,  was  its  inability  to  enforce  the  treaties  then 
made  and  existing  with  foreign  nations.  It  is  true  that  there 
was  constant  complaint  on  the  part  of  the  Federal  Government 
that  the  States  disregarded  these  treaty  obligations,  and  it  is  true 
that  some  of  the  States  claimed  that,  while  the  treaties  might  be 
morally  binding  upon  them,  they  were  not  legally  binding,  and 
claimed  the  privilege  to  regard  or  disregard  them,  as  they  saw  fit. 
That  proposition  was  effectually  denied  when  it  was  put  into  the 
Constitution  that  not  only  the  laws,  but  the  treaties,  should  be 
the  supreme  law  of  the  land,  anything  in  the  constitutions  or  the 
laws  of  the  States  to  the  contrary  notwithstanding.  That  clause 
determined  that  question,  and  only  that  question.  It  determined 
that  a  legal  treaty — that  is,  a  treaty  which  is  not  ultra  vires ;  a 
treaty  made  within  the  power — is  the  supreme  law  of  the  land. 
Nobody  can  dispute  that.  Nobody  now  claims  that  it  is  not. 
But  it  is  the  supreme  law  of  the  land  in  no  other  sense  than  any 
law  made  by  Congress  that  is  within  its  constitutional  limita¬ 
tions  is  the  supreme  law  of  the  land.  And  the  best  proof  of  that 
fact  is  the  fact  that  Congress  can,  by  enactment,  repeal  a  treaty. 
If  a  treaty  possessed  a  power  peculiar  to  itself,  if  the  treaty  rose 
superior  to  a  law  and  was  supreme  in  any  other  sense,  then  it 
would  follow  inevitably  that,  being  superior  to  the  lawmaking 
body,  it  could  not  be  repealed  by  the  lawmaking  body,  and  only 
the  power  warranted  in  making  the  treaty  would  be  warranted 
in  annulling  it.  And  yet  the  Supreme  Court  decided,  in  the 
Cliinese-exelusion  cases,  that  the  acts  passed  by  Congress,  in  so 
far  as  they  were  in  conflict  with  the  treaty  then  in  existence 
with  China,  abrogated  that  treaty,  the  rule  being  that  a  treaty 
of  Inter  date  abrogates  a  law  in  conflict  with  it  and  a  law  of 
later  date  abrogates  the  treaty. 

Now.  if  the  treaty  has  only  the  power  and  none  other  than  the 
law,  it  becomes  important  to  determine,  as  we  have  determined 
many  questions  relating  to  the  power  of  legislation  in  Congress, 
what  are  the  limitations  upon  it.  This  is  not  an  easy  task. 
It  is  easy  in  general  terms  to  recite  limitations,  but  it  is  exceed¬ 
ingly  difficult  to  determine  the  exact  line  and  say,  “  Thus 
far  shalt  thou  go  and  no  further.”  It  is  true  that  there  has 
never  been  a  treaty  declared  by  the  Supreme  Court  to  be  un¬ 
constitutional,  although  there  have  been  very  many  reviewed 
by  that  Court,  and  it  is  true  that  some  of  the  decisions  of  the 
Supreme  Court  as  to  one  subject-matter  would  seem  in  their 
logic  to  carry  the  conclusion  that  the  clause  relative  to  the 
reserved  rights  of  the  States  did  not  apply ;  because  they  have 
held  that  it  is  within  the  power  of  the  treaty-making  power  to 
remove  by  treaty  the  alienage  of  a  foreigner,  so  as  to  enable  him 
to  inherit  and  transmit  real  estate.  I  should  have  said,  as  an 
original  proposition,  that  that  was  a  matter  that  remained 
within  the  States.  I  should  have  said,  as  Mr.  Bayard  when 
Secretary  of  State  said,  that  if  the  question  was  to  arise  anew, 
he  doubted  very  much  whether  the  Supreme  Court  would  hold 
as  it  has  held ;  but  I  am  faced  with  the  fact,  I  recognize  that 
they  have  decided ;  and  in  Chirac  v.  Chirac,  and  in  many  other 
decisions  by  that  court,  they  have  held  that  a  treaty  which 
conferred  upon  an  alien  the  right  to  inherit  and  dispose  of  real 
7084 


9 


estate  overrode  any  State  law  or  constitution.  I  realize  that 
in  the  first  great  case  of  Ware  v.  Hylton,  the  Supreme  Court 
held  that  where  the  State  of  Virginia  had  passed  acts  escheat¬ 
ing  the  property  of  aliens  who  were  British  subjects,  and  had 
also  undertaken  to  put  impediments  in  the  way  of  their  right 
to  recover  debts,  that  the  treaty  overrode  those  acts  of  the  legis¬ 
lature  and  the  constitution  of  the  State  of  Virginia ;  but  I  am 
unwilling  to  concede  any  more  in  that  line  than  needs  to  be 
conceded.  The  proposition  that  is  involved  in  the  present  case, 
growing  out  of  the  controversy  between  Japan  and  California, 
is  that  the  treaty-making'  power  is  not  only  able  to  remove 
alienage  so  far  as  it  relates  to  residence,  and  so  far  as  it  relates 
to  inheritance  and  transmission  of  property,  but  that  it  can  go 
to  the  extent  of  conferring  upon  an  alien  every  right  enjoyed 
by  a  citizen  of  the  United  States  or  of  any  particular  State. 
That  I  deny.  It  is  manifest  that  no  treaty  could  undertake  to 
confer  upon  an  alien  the  right  to  hold  office  within  a  State.  It 
is  manifest  that  no  treaty  could  confer  upon  an  alien  the  right 
to  the  suffrage  within  a  State ;  because,  gentlemen,  the  treaty¬ 
making  clause  must  always  be  held  subject  to  the  general  pur¬ 
pose  and  scope  of  our  Government,  State  and  National.  It  is 
unthinkable  that  the  makers  of  the  Constitution,  who  were  so 
careful  to  guard  the  powers  of  every  particular  department,  to 
offer  check  against  check,  and  counterbalance  against  counter¬ 
balance,  were  yet  so  impressed  with  the  necessity  of  having 
facility  of  contract  with  foreign  nations  that  they  were  willing 
to  give  to  one  mtfn  and  two-thirds  of  the  Senate  present — not 
even  two-thirds  of  all  elected — the  power  to  make  a  law  that 
could  override  all  State  enactments  and  rule.  The  National 
Government  could,  if  it  saw  fit,  as  it  did  see  fit  in  the  Chinese 
treaty,  give  to  the  citizens  of  a  foreign  country  the  right  to 
education  in  the  public  schools  of  the  National  Government, 
because  that  is  a  matter  that  rests  with  the  nation. 

The  burden  is  upon  the  nation  in  maintaining  these  schools, 
and  it  might  be  proper  that  the  nation  should  impose  the  addi¬ 
tional  burden  of  education  of  aliens.  But  how  can  it  be  said, 
where  the  obligation  is  one  that  belongs  to  the  State  pri¬ 
marily,  that  is  subject  to  the  State’s  will,  so  subject  that  the 
State  could  to-morrow,  if  it  saw  fit,  do  away  with  its  public- 
school  system,  make  what  appropriation  it  saw  fit,  or  none  at  all, 
that  the  National  Government  could  confer  upon  an  alien  such 
right?  Once  you  concede  that  right,  I  see  no  reason  in  a  logical 
way  why  you  should  not  concede  any  other  particular  right  that 
may  be  desired  in  regard  to  the  internal  affairs  of  a  State. 

Now,  I  desire  to  draw  the  attention  of  the  committee  to  an¬ 
other  argument,  and  I  do  it  with  a  great  deal  of  hesitancy  and 
some  reluctance.  What  I  am  about  to  say  may  seem  foolfsh,  and 
I  confess  it  is  novel.  I  am  not  satisfied  in  my  own  mind,  but  I 
am  unable  to  detect  the  flaw  in  the  logic  if  it  be  there.  The  Con¬ 
stitution  provides  that  the  President,  with  the  consent  of  the 
Senate,  may  make  treaties  and  also  provides  that  “  no  State  shall 
enter  into  any  treaty,  alliance,  or  confederation.”  Now,  if  this 
was  all,  it  would  be  manifest  that  whatever  agreement  might  be 
had  with  other  nations  would  have  to  be  had  by  virtue  of  a 
treaty  made  by  the  National  Government.  But  this  is  not  all. 
The  prohibition  upon  the  States  to  make  treaties  is  contained  in 
the  beginning  of  section  10  of  Article  I  of  the  Constitution,  and 
7084 


10 


in  the  last  division  of  that  section  it  is  declared  that  “  no  State 
shall,  without  the  consent  of  Congress,  *  *  *  enter  into  an 

agreement  or  compact  with  another  State,  or  with  a  foreign 
power.”  Of  course  it  is  clear  that  the  negative  form  of  this  dec¬ 
laration  admits  the  affirmative,  and  a  State  can  with  the  consent 
of  Congress  enter  into  an  agreement  with  another  State  or  with 
a  foreign  power.  But  yesterday  this  House  passed  a  bill  giving 
the  consent  of  Congress  to  an  agreement  between  two  of  the 
States.  Now,  if  an  agreement  can  be  made  between  a  State  and 
a  foreign  power,  it  follows  that  such  an  agreement  must  be  one 
not  included  within  the  scope  of  a  treaty,  because  a  State  is,  as 
we  have  seen,  prohibited  from  making  any  treaty. 

That  of  itself  is  a  further  indication  that  the  treaty-making 
power  does  not  embrace  all  contracts  of  every  kind  which  can  be 
thought  of  between  the  people  of  one  country  and  the  people  of 
another.  What  seems  to  my  mind  to  have  been  the  view  of  the 
makers  of  the  Constitution  was  that  the  treaty  power  should 
relate  to  those  subjects  naturally  belonging  to  treaties;  should 
relate  to  those  subjects  that  pertain  to  the  country  as  a  whole. 
It  was  proper — aye,  it  was  necessary — that  one  voice  should  speak 
as  to  its  contracts  with  other  nations  when  it  spoke  on  behalf  of 
all  the  people,  and  it  was  further  manifest  that  when  that  voice 
spoke  within  its  domain,  the  voice  of  every  State  must  be 
silent,  that  no  discordant  note  might  be  heard  to  limit  or  deny 
the  solemn  compact  of  the  General  Government.  But  it  is  evi¬ 
dent  that  there  are  many  things  that  may  pertain  peculiarly  to 
one  locality,  to  one  section  of  the  country,  and  to  its  relationship 
to  foreign  nations  that  do  not  pertain  to  the  balance  of  the 
country  and  should  not  be  embraced  within  a  treaty.  We  have 
States  adjoining  Canada,  we  have  States  adjoining  Mexico,  and 
it  might  be  proper — and  I  do  not  know  but  what  it  has  been 
done ;  I  was  unable  to  find  any  case — for  one  of  those  States, 
by  consent  of  Congress,  to  enter  into  an  agreement  with  a 
foreign  nation  relative  to  such  matter  local  to  it.  I  even  con¬ 
sider  that  this  very  subject-matter  that  has  given  rise  to  this 
discussion  is  a  case  that  would  more  properly  fall  into  an  agree¬ 
ment  between  a  State  and  a  foreign  power  than  it  would  under 
the  treaty-making  power.  It  might  well  be  that  one  State  would 
be  willing  to  concede  to  the  citizens  of  a  foreign  country  the 
right  of  education  within  the  schools  of  that  State  in  considera¬ 
tion  of  the  same  right,  for  instance,  being  given  to  the  citi¬ 
zens  of  that  State  in  the  country  with  which  the  agreement  is 
made,  but  that  the  National  Government  should  have  the  power 
to  confer  upon  a  foreigner  a  right  which  imposes  an  obligation 
not  upon  the  nation,  but  upon  an  individual  State,  seems  to  me 
utterly  illogical.  There  is  to  my  mind  a  distinction  in  an  agree¬ 
ment  removing  a  disability  from  one  creating  an  affirmative 
right.  The  Supreme  Court  has  said,  and  therefore  I  accept  it, 
that  the  treaty-making  power  can  confer  the  right,  or,  to  put  it 
more  accurately,  that  it  can  remove  the  disability  of  alienage 
so  that  the  foreigner  may  inherit  what  he  would  inherit  if  it 
were  not  for  his  alien  birth.  That  is  simply  the  removal  of  a 
disability  and  confers  no  burden  upon  the  State;  it  simply  de¬ 
clares  an  equity,  does  away  with  the  old  harsh  view  that  the 
outsider,  the  barbarian,  as  the  Greeks  called  all  that  lived  out¬ 
side  of  their  borders,  should  have  no  right  of  property  within  a 
7084 


11 


state.  Modern  international  law  does  not  recognize  such  treat¬ 
ment.  It  says  foreigners  should  be  treated  in  their  rights  of 
property  as  if  they  did  not  have  the  disability  of  alienage.  To 
hold,  however,  that  our  treaty-making  power  goes  to  the  extent 
of  giving  an  affirmative  right  that  imposes  an  obligation  not  upon 
the  United  States,  but  upon  a  particular  State ;  that  requires  the 
taxation  not  of  all  the  people ;  seems  to  my  mind  to  carry  it 
very  much  too  far.  This  I  do  know,  that  if  that  be  the  extent 
of  the  treaty-making  power,  the  sooner  the  people  of  the  United 
States  demand  of  their  representatives  in  the  other  branch  of 
Congress  a  strict  and  careful  limitation  of  the  contracts  that  are 
entered  into  with  foreign  nations  the  better.  I  hold  very  much 
to  the  theory  that  the  less  of  contact  between  nations  and  the 
more  of  contact  between  people  the  better.  I  believe  that  a 
treaty  does  not  always  help,  but  is  very  apt  to  hamper,  the 
friendly  relations  between  nations.  Certainly  if  the  construction 
that  is  being  put  by  the  Administration  upon  this  particular 
treaty  be  the  true  one,  and  I  shall  not  discuss  that  question, 
though  it  seems  to  me  to  be  open  to  much  question,  then  it  fol¬ 
lows  that  a  right  that  was  not  considered  by  the  parties  at  the 
time  it  was  given,  at  least  not  considered  to  the  extent  of  hav¬ 
ing  an  express  declaration  about  it,  is  liable  to  be  made  the 
cause  of  disturbing  relations  that  have  existed  harmoniously 
for  more  than  half  a  century  between  the  two  countries.  Such 
a  result  flowing  from  ill-considered  treaties  is  to  be  greatly  de¬ 
plored,  and  the  people  of  America  should  demand  of  the  treaty¬ 
making  power  the  most  careful  scrutiny  of  any  treaty  entered 
into. 

Mr.  Chairman,  an  examination  of  the  decisions  and  the  text 
writers  on  this  subject  will,  I  believe,  confirm  these  views  of 
mine.  It  so  happens  that  the  debates  at  the  time  of  the  adop¬ 
tion  of  the  Constitution  are  singularly  silent  in  regard  to  the 
matter,  but  when  the  Constitution  came  before  the  various  State 
conventions  for  adoption  there  occurred  considerable  debate, 
particularly  in  Virginia.  Patrick  Henry,  opposed  to  the  Con¬ 
stitution,  believing  sincerely  that  it  was  robbing  the  States  of 
all  their  rights  and  depriving  the  people  of  liberty,  seized  upon 
every  possible  thing  as  an  argument  against  ratifying  the  Con¬ 
stitution.  Among  other  things  he  took  hold  of  the  treaty-mak¬ 
ing  power.  He  made  then  the  very  claim  that  is  made  by  the 
advocates  of  an  unlimited  power  now.  He  declared  that  the 
treaty-making  power  was  sufficient  to  swallow  up  all  the  rights 
of  the  States  and  of  the  National  Government ;  that  all  they 
needed  to  do  was  to  enter  into  some  agreement  with  a  foreign 
country,  and  what  they  could  not  do  by  ordinary  act  of  legis¬ 
lation  they  then  became  empowered  to  do.  He  was  answered  by 
Madison,  Randolph,  Nicholas,  and  several  others  of  the  members 
of  the  convention,  and  in  answering  him  they  declared  that  such 
reasoning  was  not  warranted ;  that  the  treaty-making  power 
was  limited,  must  be  considered  as  being  subject  to  the  express 
limitations  in  the  Constitution,  and  further  limited  by  the  na¬ 
ture  and  character  of  our  dual  form  of  government.  The  gentle¬ 
man  from  Vermont  [Mr.  Foster]  quoted  Calhoun  as  authority 
for  his  position.  Some  seem  to  think  that  because  Calhoun 
enumerates  certain  limitations,  therefore  all  other  limitations 
not  enumerated  do  not  apply.  This  does  not  follow ;  because 
he  does,  in  the  enumeration  of  specific  cases,  also  put  as  a  limi- 
7084 


12 


tation  the  nature  and  the  character  of  our  Government,  and  the 
Supreme  Court,  when  quoting  Calhoun  in  the  case  of  Geoffroy  v. 
Riggs  (133  U.  S.,  258),  a  case  growing  out  of  the  treaty  made 
with  France,  where  the  court  again  confirmed  the  power  of  a 
treaty  to  give  an  alien  the  right  to  inherit  and  transmit  property, 
said  that  the  treaty-making  power  was  not  only  limited  by 
these  express  provisions,  but  limited  “  by  the  nature  of  the  Gov¬ 
ernment  itself  and  of  that  of  the  States.”  If  it  be  limited  by  the 
character  of  the  government  of  the  States,  what  conclusion  can 
you  draw  other  than  that  the  reserved  powers  of  the  States 
are  a  limitation  upon  the  treaty-making  power?  For  if  it  does 
not  mean  that,  it  means  nothing. 

I  might  continue  to  cite  cases  and  writers,  and  I  had  origi¬ 
nally  intended  so  to  do,  but  within  a  few  days  a  gentleman  of 
my  city,  a  distinguished  lawyer,  the  judge  of  our  chancery  court, 
and  a  professor  in  our  law  school,  has  delivered  an  elaborate 
lecture  upon  this  subject.  He  has  summarized  so  well  all  of  the 
opinions  of  the  writers,  from  the  adoption  of  the  Constitution 
down,  that  for  me  to  undertake  it  would  be  either  to  repeat 
what  he  has  said  or  to  poorly  do  what  has  been  superbly  done. 
So  I  shall  content  myself  with  filing  as  a  part  of  my  remarks, 
with  the  permission  of  the  committee,  this  elaborate  lecture  upon 
that  question,  and  I  trust  the  House  will  read  it  most  carefully. 
I  have  spoken  without  manuscript,  save  a  few  notes,  and  of 
necessity  have  not  therefore  been  always  accurate  or  concise, 
but  there  will  be  found  the  exact  quotations  from  the  men  who 
made  the  Constitution  and  from  the  great  writers  and  judges 
who  have  construed  it  ever  since.  In  conclusion,  may  I  be  par¬ 
doned  for  saying  that  it  seems  to  me  that  in  this  day,  when  we 
are  told  that  if  the  exigencies  of  the  case  demand  it  we  must 
either  give  to  the  National  Government  more  power  or  the 
National  Government  must  in  some  way  take  it  to  itself,  the 
House  should  view  with  particular  care  the  claim  that  is  being 
made  that  this  power  extends  over  all  others.  I  utterly  abhor 
the  man  who  is  so  narrow,  whose  love  of  his  State  is  so  petty, 
that  he  can  not  rise  to  a  realization  of  the  obligations  and  duties 
imposed  upon  all  of  us  as  members  of  the  nation,  but  I  abhor 
in  even  greater  degree  the  man  who,  out  of  pressure  of  the  im¬ 
mediate  moment,  out  of  the  exigencies  of  the  case,  is  willing 
to  twist  and  pervert  the  fundamental  law  of  the  land  in  order 
to  have  his  way  and  in  order  to  give  the  National  Government 
unwarranted  power.  [Applause.]  I  believe  more  and  more 
each  day  that  the  salvation  of  America  and  of  America’s  people 
lies  in  getting  back  to  the  old  doctrine  of  self-dependence  and 
independence  [applause],  of  teaching  the  people  that  not  by  stat¬ 
ute  can  they  be  made  upright,  but  out  of  themselves  must  come 
the  grace  that  is  to  reform  and  redeem.  I  believe  we  must  have 
the  people  check  the  constant  tendency  to  put  off  somewhere  else 
the  doing  of  an  obligation  that  rests  at  home.  It  has  been  my 
fortune  in  this  House  to  frequently  oppose  the  power  of  the 
National  Government.  Sometimes  it  may  have  seemed  that  in 
doing  so  I  would  wish  to  take  away  from  it  all  of  its  real 
strength,  but  this  is  in  no  sense  true.  If  I  had  been  a  member 
of  a  State  legislature  I  should  most  likely  have  been  just  as 
pronounced  in  my  opposition  to  much  of  the  legislation  there. 
I  believe  that  the  States  should  only  do  those  things  that  the 
individual  can  not  do,  and  that  the  nation  should  only  do  those 
7084 


13 


things  that  the  State  and  the  individual  can  not  do,  and  I  always 
approach  every  proposition  of  legislation  with  a  feeling  of  hos¬ 
tility.  The  burden  is  also  on  the  man  proposing  legislation  when 
he  asks  me  to  support  it. 

1  think  we  are  a  law-ridden  Government.  We  have  so  much 
law  that  we  have  ceased  to  obey  any  law.  Why,  it  has  gotten 
to  the  point  where  our  very  notices  give  an  indication  of  our  dis¬ 
regard  of  the  law.  We  publish  not  only  that  a  thing  is  prohib¬ 
ited,  but  in  order  to  make  somebody  really  believe  that  we  mean 
it  we  say  that  such  and  such  a  thing  is  positively  prohibited,  as 
if  there  could  be  degrees  of  prohibition  in  a  law-abiding  com¬ 
munity.  And  it  all  grows  out  of  the  fact  that  we  pass  laws 
that  result  in  bringing  about  a  condition  that,  being  obeyed, 
would  not  be  livable  under.  It  is  one  of  the  great  eternal  truths 
of  life  that  the  remote  results  of  legislation  are  always  greater, 
more  far-reaching  in  their  effect  upon  people,  than  the  imme¬ 
diate  results.  We  pass  some  act  for  a  particular  purpose,  and 
after  we  have  passed  it  for  that  purpose  we  awake  to  find  that 
the  effect  of  it  is  being  felt  in  a  hundred  other  directions  that 
were  never  contemplated,  and  we  are  forced  either  to  disregard 
the  law  or  to  repeal  it,  and  then  the  inertia  of  Government  in 
regard  to  the  repealing  of  laws  makes  us  disregard  them,  and 
we  become  a  nation  of  lawbreakers. 

Therefore  I  believe  that  one  performs  no  higher  duty  than 
when  he  insists  on  the  strict  construction  of  powers ;  not  with 
the  idea  of  detracting  from  the  vigor  of  the  nation,  but  because 
he  believes,  as  said  by  Justice  Brewer,  that  this  nation  as  a  na¬ 
tion  has  all  the  powers  that  any  people  have,  but  that  those 
powers  rest  with  the  people,  and  only  to  the  extent  that  they 
have  delegated  them  do  they  rest  in  the  National  Government, 
and  that  we  have  made  provision  for  the  extension  of  those  pow¬ 
ers  ;  and  because  it  would  be  better  to  wait  until  that  extension 
was  legally  given  and  suffer  the  particular  evil  that  exists  than 
to  disregard  the  highest  law  of  the  land. 

Gentlemen,  if  you  permit  the  disregard  of  your  Constitution, 
how,  in  the  name  of  common  sense,  can  you  expect  the  people 
to  regard  the  law  supposedly  made  under  the  Constitution? 
[Loud  applause.] 


APPENDIX. 

In  accordance  with  the  permission  granted  me  by  the  committee,  I 
append  the  lecture  delivered  by  Judge  Shackleford  Miller,  of  Louisville, 
Ky.,  before  the  Jefferson  School  of  Law  : 

The  recent  disturbance  in  California,  brought  about  by  the  action  of 
the  school  authorities  of  San  Francisco  in  closing  the  doors  of  the 
public  schools  of  that  city  against  Japanese  students  residing  there, 
naturally  provokes  a  discussion  of  the  treaty-making  power  under  the 
Constitution  of  the  United  States.  The  Japanese  claim  the  right  to 
attend  the  San  Francisco  public  schools  under  the  treaty  of  1894  be¬ 
tween  Japan  and  the  United  States,  which  provides  as  follows  : 

“  The  citizens  or  subjects  of  either  of  the  two  high  contracting  par¬ 
ties  shall  have  full  liberty  to  enter,  travel,  or  reside  in  any  part  of  the 
territories  of  the  other  contracting  party,  and  shall  enjoy  full  and 
perfect  protection  for  their  persons  or  property.  In  whatever  relates 
to  rights  of  residence  and  travel,  to  the  possession  of  goods  and  effects 
of  any  kind,  to  the  succession  to  personal  estate  by  will  or  otherwise 
and  the  disposal  of  property  of  any  kind  and  in  any  manner  whatso¬ 
ever  which  they  may  lawfully  acquire,  the  citizens  or  subjects  of  each 
contracting  party  shall  enjoy  in  territories  of  the  other  the  same  priv¬ 
ileges,  liberties,  and  rights,  and  shall  be  subject  to  no  higher  imposts 
or  charges  in  these  respects  than  native  citizens  or  subjects  of  the 
most-favored  nation.” 

7084 


14 


It  will  no  doubt  readily  be  conceded  that  the  right  of  the  Japanese 
students  to  attend  the  public  schools  must  he  founded  upon  this  treaty 
right  of  residence  or  it  does  not  exist.  There  is  no  other  right  or 
privilege  mentioned  in  the  treaty  which  could  even  he  remotely  claimed 
to  embrace  the  right  of  attending  the  public  schools.  It  would  seem, 
however,  that  a  fair  construction  of  the  treaty  would  scarcely  extend 
the  privilege  of  the  public  schools  of  a  State  to  unnaturalized  for¬ 
eigners.  If  the  Federal  Government  had  so  intended,  it  is  hut  reason¬ 
able  to  assume  that  the  treaty  would  have  so  provided  in  express  terms. 
It  was  careful  to  cover  the  rights  of  entry,  travel,  residence,  the  suc¬ 
cession  of  personalty,  and  the  disposition  of  property  of  all  kinds,  but 
it  nowhere  appears  that  school  privileges  were  ever  considered. 

Under  the  present  treaty,  therefore,  it  would  seem  reasonably  clear 
that  the  Japanese  residents  of  California  have  no  right  to  have  them¬ 
selves  and  their  children  educated  at  the  public  schools  and  at  the 
public  expense. 

But  the  larger  question  arises  :  Can  the  President  and  Senate  consti¬ 
tutionally  make  a  treaty  with  Japan  that  would  confer  this  right  upon 
the  Japanese  residents  of  California? 

The  answer  to  this  question  turns  upon  the  extent  of  the  treaty¬ 
making  power  granted  to  the  Federal  Government  under  the  Federal 
Constitution. 

This  power  is  found  in  the  following  provision  : 

“  He  [the  President]  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the 
Senate  present  concur.”  (Const.,  Art.  II,  sec.  2,  cl.  2.) 

“  This  Constitution  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  the  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States  shall  be  the  supreme 
law  of  the  land  ;  and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  State  to  the  contrary  not¬ 
withstanding.”  (Ib.,  Art.  VI,  cl.  2.) 

It  may  be  interesting  to  consider  briefly  the  origin  of  the  clause  and 
how  it  has  been  viewed  in  the  light  of  American  history. 

NOT  DISCUSSED  IN  CONVENTION. 

Strange  though  it  may  now  appear,  the  question  of  the  extent  of  the 
treaty-making  power  was  not  discussed  at  all  in  the  Federal  convention 
of  1787.  The  right  to  enter  into  “  treaties  and  alliances,”  under  some 
slight  restrictions  upon  treaties  relating  to  commerce,  was  given  to  the 
Congress  under  the  Articles  of  Confederation  (art.  9).  The  clause  re¬ 
lating  to  the  subject  of  treaties  originated  in  the  “  committee  of  de¬ 
tail  ”  and  in  the  later  stages  of  the  convention.  Prior  to  that  time 
the  subject  had  not  come  up  for  action,  but  had  only  been  referred  to 
incidentally  in  the  consideration  and  discussion  of  other  subjects.  It 
first  formally  appeared  as  the  first  clause  of  article  9  in  the  commit¬ 
tee’s  report  of  August  6,  1787,  wherein  “  the  power  to  make  treaties  ” 
was  lodged  in  the  Senate  alone.  (5  Elliott’s  Debates,  379.)  After  a 
short  consideration  on  August  23,  the  clause  was  referred  back  to  the 
“  committee  of  detail  ;  ”  but  as  that  committee  made  no  further  report, 
the  clause  went  to  the  “  committee  on  unfinished  portions,”  which  re¬ 
ported  it  on  September  4  substantially  as  we  now  have  it,  by  transfer¬ 
ring  the  power  to  the  President,  with  the  advice  and  consent  of  the 
Senate. 

At  no  time,  however,  did  the  convention  discuss  the  scope  or  extent 
of  the  power  ;  it  merely  considered  the  question  as  to  where  the  power 
should  be  lodged — who  should  exercise  it.  The  same  is  true  as  to  the 
“  Federalist,”  written  in  support  of  the  proposed  constitution  while  it 
was  before  the  State  convention  for  ratification.  The  authors  of  that 
able  work  confined  their  discussion  of  the  subject  of  the  treaty-making 
power  not  to  its  extent,  but  to  an  effort  tending  to  show  that  it  had 
been  properly  lodged  in  the  President  and  Senate.  (Nos.  64  and  75.) 

But  when  the  Constitution  came  on  for  ratification  by  the  State  con¬ 
ventions  it  was  to  be  expected  that  its  opponents  would  carefully  scan 
it  with  the  view  of  determining,  if  possible,  precisely  what  powers  the 
several  provisions  carried  and  what  limitations  they  imposed. 

The  scope  and  extent  of  the  provisions  of  the  Constitution  were  more 
elaborately  discussed  in  the  Virginia  ratifying  convention  of  1788  than 
in  any  of  the  other  similar  conventions. 

In  the  Virginia  ratification  of  1788  it  was  strongly  contended  by  Pat¬ 
rick  Henry,  William  Grayson,  George  Mason,  and  the  other  leading  op¬ 
ponents  of  the  Constitution  that  the  treaty-making  power  was  unlimited 
and  therefore  unwise  and  inconsistent  with  the  proclaimed  theory  of  its 
friends  that  the  proposed  Federal  Government  was  one  of  delegated 
powers,  specifically  defined  or  necessarily  implied.  In  the  course  of  the 
debate  Mr.  Henry  said  : 

7084 


“  We  are  so  used  to  speak  of  enormity  of  powers  that  we  are  familiar 
with  it.  To  me  this  power  appears  still  destructive,  for  they  can  make 
any  treaty. 

“  If  Congress  forbears  to  exercise  it,  you  may  thank  them,  but  they 
may  exercise  it  if  they  please  and  as  they  please.  They  have  a  right 
from  the  paramount  power  given  them  to  do  so.” 

It  fell  to  the  lot  of  Madison,  Governor  Randolph,  and  George  Nicholas 
to  meet  this  argument,  and  in  doing  so  Nicholas  said  : 

NOT  REPUGNANT  TO  CONSTITUTION. 

“  The  worthy  Member  says  that  they  can  make  a  treaty  relinquishing 
any  rights  and  inflicting  punishments,  because  all  the  treaties  are  de¬ 
clared  paramount  to  the  constitutions  and  laws  of  the  States.  An  at¬ 
tentive  consideration  of  this  will  show  the  committee  that  they  can 
do  no  such  thing.  The  provision  of  the  sixth  article  is  that  this  Con¬ 
stitution  and  the  laws  of  the  United  States  which  shall  be  made  under 
the  authority  of  the  United  States  shall  be  the  supreme  law  of  the 
land.  They  can  by  this  make.no  treaty  which  shall  be  repugnant  to 
the  spirit  of  the  Constitution  or  inconsistent  with  the  delegated  powers. 
The  treaties  they  make  must  be  made  under  the  authority  of  the 
United  States  to  be  within  their  province.  It  is  sufficiently  secured 
because  it  only  declares  that  in  pursuance  of  the  power  given  they 
shall  be  the  supreme  law  of  the  land,  notwithstanding  anything  in  the 
constitution  or  laws  of  the  particular  States.”  (3  Elliott’s  Debates, 
507.) 

In  closing  the  debate  Mr.  Madison  said  : 

“  I  am  persuaded  that  when  this  power  comes  to  be  thoroughly  and 
candidly  viewed  it  will  be  found  right  and  proper.  As  to  its  extent, 
perhaps  it  will  be  satisfactory  to  the  committee  that  the  power  is  pre¬ 
cisely  in  the  new  Constitution  as  it  is  in  the  Confederation.  In  the  ex¬ 
isting  confederacy  Congress  is  authorized  indefinitely  to  make  treaties. 
Many  of  the  States  have  recognized  the  treaties  of  Congress  to  be  the 
supreme  law  of  the  land.  Acts  have  passed  within  a  year  declaring 
this  to  be  the  case.  I  have  seen  many  of  them.  Does  it  follow  be¬ 
cause  the  power  is  given  to  Congress  that  it  is  absolute  and  unlimited? 
I  do  not  conceive  that  power  is  given  to  the  President  and  Senate  to 
dismember  the  empire  or  to  alienate  any  great  essential  right.  I  do 
not  think  the  whole  legislative  authority  have  this  power.  The  exercise 
of  the  power  must  be  consistent  with  the  object  of  the  delegation. 
One  objection  against  the  amendment  proposed  is  this,  that  by  im¬ 
plication  it  would  give  power  to  the  legislative  authority  to  dismem¬ 
ber  the  empire — a  power  that  ought  not  to  be  given  but  by  the  neces¬ 
sity  that  would  force  assent  from  every  man.  I  think  it  rests  on  the 
safest  foundations  as  it  is.  The  object  of  treaties  is  the  regulation  of 
intercourse  with  foreign  nations  and  is  external.  I  do  not  think  it 
possible  to  enumerate  all  the  cases  in  which  such  external  regulations 
would  be  necessary.  Would  it  be  right  to  define  all  the  cases  in  which 
Congress  could  exercise  this  authority?  The  definition  might  and  prob¬ 
ably  would  be  defective.  They  might  be  restrained  by  such  a  defini¬ 
tion  from  exercising  the  authority  where  it  could  be  essential  to  the 
interest  and  safety  of  the  community.  It  is  most  safe  therefore  to 
leave  it  to  be  exercised  as  contingencies  may  arise.”  (3  Elliott’s  De¬ 
bates,  514.) 

The  views  of  Madison  prevailed  m  the  Virginia  convention,  as  they 
have  generally  prevailed  upon  constitutional  questions  in  the  country 
at  large.  (Pomeroy’s  Constitutional  Law,  sec.  34.) 

FIRST  IMPORTANT  DISCUSSION. 

The  Constitution  went  into  operation  in  1789.  The  first  important 
discussion  of  the  treaty-making  power  arose  in  connection  with  Jay’s 
treaty  concluded  with  Great  Britain  on  November  19,  1794.  It  was 
approved  by  the  Senate  on  August  18,  1795  ;  proclaimed  by  the  Presi¬ 
dent  on  February  29,  1796,  and  this  proclamation  was  communicated 
to  both  Houses  of  Congress  on  March  1,  1796.  Money  was  necessary 
to  carry  its  provisions  into  effect,  and  as  money  could  be  only  appro¬ 
priated  by  both  Houses  of  Congress,  differences  of  opinion  at  once 
arose  as  to  the  extent  of  the  treaty-making  power  and  the  obligation  it 
imposed  upon  the  House  of  Representatives  : 

“  On  the  one  side  it  was  maintained  that  the  power  of  the  President 
and  Senate  as  to  treaties  was  absolute,  and  that  the  House  of  Repre¬ 
sentatives  was  bound,  under  the  Constitution,  to  make  the  appropria¬ 
tions  necessary  to  carry  the  treaty  into  effect.  On  the  other  side  it 
was  contended  that,  under  the  Constitution,  the  consent  of  the  House 
was  requisite  to  pass  appropriations  to  carry  the  treaty  into  effect,  and 
that  this  was  as  much  known  to  the  other  contracting  party  as  was 
7084 


16 


the  consent  of  the  Senate  to  the  preliminary  adoption  of  the  treaty.” 
(Wharton’s  Int.  Law  Dig.,  17.) 

On  March  21,  1796,  Jefferson  wrote  to  Monroe,  then  in  France,  as 
follows  : 

“  The  British  treaty  has  been  formally  at  length  laid  before  Con¬ 
gress.  All  America  is  a  tiptoe  to  see  what  the  House  of  Representa¬ 
tives  will  decide  on  it. 

“  We  conceive  the  constitutional  doctrine  to  be  that,  though  the 
President  and  Senate  have  the  general  power  of  making  treaties,  yet 
wherever  they  include  in  a  treaty  matters  confided  by  the  Constitution 
to  the  three  branches  of  legislature,  an  act  of  legislation  will  be  requi¬ 
site  to  confirm  these  articles,  and  that  the  House  of  Representatives, 
as  one  branch  of  the  legislature,  are  perfectly  free  to  pass  the  act  or  to 
refuse  it,  governing  themselves  by  their  own  judgment  whether  it  is 
for  the  good  of  their  constituents  to  let  the  treaty  go  into  effect  or  not. 
On  the  precedent  now  to  be  set  will  depend  the  future  construction  of 
our  Constitution,  and  whether  the  powers  of  legislation  shall  be  trans¬ 
ferred  from  the  President,  Senate,  and  House  of  Representatives  to  the 
President,  Senate,  and  Piaminigo,  or  any  other  Indian,  Algerine,  or 
other  chief.”  (4  Jefferson’s  Works,  134.) 

Henry  Adams,  a  grandson  of  that  stout  old  Federalist,  John  Quincy 
Adams,  has  written  a  life  of  Albert  Gallatin,  who  was  then  a  Member 
of  Congress  from  Pennsylvania.  In  describing  the  debate  in  the  House 
of  Representatives,  Henry  Adams  says  : 

CHECK  ON  TREATY-MAKING  POWER. 

“  The  debate  began  on  March  7,  1796,  and  on  the  10th  Mr.  Gallatin 
spoke  attacking  the  constitutional  doctrine  of  the  Federalists  and  laying 
down  his  own.  He  claimed  for  the  House,  not  a  power  to  make  treaties, 
but  a  check  upon  the  treaty-making  power  when  clashing  with  the 
special  powers  expressly  vested  in  Congress  by  the  Constitution ;  he 
showed  the  existence  of  this  check  in  the  British  constitution,  and  he 
showed  its  necessity  in  our  own,  for  if  the  treaty-making  power  is  not 
limited  by  existing  laws,  or  if  it  repeals  the  laws  that  clash  with,  or  if 
the  legislature  is  obliged  to  repeal  the  laws  so  clashing,  then  the  legis¬ 
lative  power  in  fact  resides  in  the  President  and  Senate,  and  they  can, 
by  employing  an  Indian  tribe,  pass  any  law  under  the  color  of  treaty. 

“  The  argument  was  irresistible  ;  it  was  never  answered  ;  and,  indeed, 
the  mere  statement  is  enough  to  leave  only  a  sense  of  surprise  that  the 
Federalists  should  have  hazarded  themselves  on  such  preposterous 
ground.  Some  years  later,  when  the  purchase  of  Alaska  brought  this 
subject  again  before  the  blouse  on  the  question  of  appropriating  the 
purchase  money  stipulated  by  the  treaty,  the  Administration  abandoned 
the  old  Federalist  position  ;  the  right  of  the  House  to  call  for  papers, 
to  deliberate  on  the  merits  of  the  treaty,  even  to  refuse  appropriations 
if  the  treaty  was  inconsistent  with  the  Constitution  or  with  the  estab¬ 
lished  policy  of  the  country,  was  fully  conceded.  The  Administration 
only  made  the  reasonable  claim  that  if,  upon  just  consideration,  a 
treaty  was  found  to  be  clearly  within  the  constitutional  powers  of  the 
Government,  and  consistent  with  the  national  policy,  then  it  was  the 
duty  of  each  coordinate  branch  of  the  Government  to  shape  its  action 
accordingly.  See  the  speech  of  N.  P.  Banks  of  June  30,  1868,  Cong. 
Globe,  vol.  75,  appendix,  p.  385.” — (Life  of  Albert  Gallatin,  p.  161.) 

Gallatin’s  views  prevailed  in  the  Hbuse  by  a  vote  of  57  against  35. 

While  Jefferson  was  Vice-President  he  prepared  his  now  famous 
Manual  of  Parliamentary  Practice.  It  has  ever  since  remained  the 
highest  authority  in  this  country  upon  that  subject.  The  work  was 
published  in  1800,  and  contains  this  note  under  the  head  of  treaties  : 

“  By  the  Constitution  of  the  United  States  this  department  of  legis¬ 
lation  is  confined  to  two  branches  only  of  the  ordinary  legislature  ;  .the 
President  originating  and  the  Senate  having  a  negative.  To  what 
subject  this  power  extends  has  not  been  defined  in  detail  by  the  Con¬ 
stitution,  nor  are  we  entirely  agreed  among  ourselves.  (1)  It  is  ad¬ 
mitted  that  it  must  concern  the  foreign  nation,  party  to  the  contract, 
or  it  would  be  a  mere  nullity,  res  inter  alios  acta.  (2)  By  the  general 
power  to  make  treaties,  the  Constitution  must  have  intended  to  com¬ 
prehend  only  those  objects  which  are  usually  regulated  by  treaty,  and 
can  not  be  otherwise  regulated.  (3)  It  must  have  meant  to  except  out 
of  these  the  rights  reserved  to  the  States,  for  surely  the  President  and 
Senate  can  not  do  by  treaty  what  the  whole  Government  is  interdicted 
from  doing  in  any  way.  (4)  And  also  to  except  those  subjects  of 
legislation  in  which  it  gave  a  participation  to  the  House  of  Representa¬ 
tives.  This  last  exception  is  denied  by  some  on  the  ground  that  it 
would  leave  very  little  matter  for  the  treaty  power  to  work  on.  The 
less  the  better,  say  others.” 

7084 


IT 


REASON  FOR  RESTRAINT. 

“  The  Constitution  thought  it  wise  to  restrain  the  Executive  and  Sen¬ 
ate  from  entangling  and  embroiling  our  affairs  with  those  of  Europe. 
Besides,  as  the  negotiations  are  carried  on  by  the  Executive  alone,  the 
subjecting  to  the  ratification  of  the  Representatives  such  articles  as 
are  within  their  participation  is  no  more  inconvenient  than  to  the 
Senate.  But  the  ground  of  this  exemption  is  denied  as  unfounded. 
For  example,  e.  g.,  the  treaty  of  commerce  with  France,  and  it  will 
be  found  that  out  of  thirty-one  articles  there  are  not  more  than  small 
portions  of  two  or  three  of  them  which  would  not  still  remain  as  sub¬ 
jects  of  treaties,  untouched  by  these  exceptions.”  (Jefferson’s  Works, 
IX,  80.) 

The  first  formal  treatise  upon  the  Constitution  of  the  United  States 
was  published  by  Judge  St.  George  Tucker  in  1803  as  an  appendix  to 
his  edition  of  Blackstone.  In  that  work  Judge  Tucker  says  : 

“  Treaties,  as  defined  by  Puffendorf,  are  certain  agreements  made 
by  sovereigns  between  one  another,  of  great  use  both  in  war  and  peace. 
Of  these  there  are  two  kinds  :  The  one  such  as  reenforce  the  observance 
of  what  by  the  law  of  nature  we  were  before  obliged  to.  as  the  mutual 
exercise  of  civility  and  humanity,  or  the  prevention  of  injuries  on  either 
side  ;  the  second,  such  as  add  some  new  engagement  to  the  duties  of 
natural  law,  or  at  least  determine  what  was  before  too  general  and 
indefinite  in  the  same,  to  something  particular  and  precise.  Of.  those 
which  add  some  new  engagements  to  those  duties  which  natural  law 
imposes  upon  all  nations,  the  most  usual  relate  to,  or  in  their  opera¬ 
tion  may  affect,  the  sovereignty  of  the  state,  the  unity  of  its  parts, 
its  territory  or  other  property,  its  commerce  with  foreign  nations,  and 
vice  versa ;  the  mutual  privileges  and  immunities  of  the  citizens  or 
subjects  of  the  contracting  powers,  or  the  mutual  aid  of  the  contract¬ 
ing  nations,  in  the  case  of  an  attack  or  hostility  from  any  other 
quarter.  To  all  these  objects,  if  there  be  nothing  in  the  fundamental 
laws  of  the  state  which  contradicts  it,  the  power  of  making  treaties 
extends  and  is  vested  in  the  conductors  of  states,  according  to  the 
opinion  of  Vattel. 

“  In  our  Constitution  there  is  no  restriction  as  to  the  subjects  of 
treaties,  unless  perhaps  the  guaranty  of  a  republican  form  of  govern¬ 
ment  and  protection  from  invasion,  contained  in  the  fourth  article, 
may  be  construed  to  impose  such  a  restriction  in  behalf  of  the  several 
States  against  the  dismemberment  of  the  Federal  Republic.  But 
whether  this  restriction  may  extend  to  prevent  the  alienation,  by  ces¬ 
sion,  of  the  western  territory,  not  being  a  part  of  any  State,  may  be 
somewhat  more  doubtful.”  (1  Tucker’s  Blackstone;  appendix,  332.) 

During  the  years  1790  and  1791  Mr.  Justice  Wilson,  of  the  United 
States  Supreme  Court,  delivered  a  course  of  lectures  on  law  before  the 
College  of  Philadelphia.  These  lectures  were  published  in  1804,  after 
his  death,  by  his  son.  Part  II  of  that  work  relates  to  the  constitu¬ 
tions  of  the  United  States  and  of  Pennsylvania,  and  chapter  2  thereof 
treats  of  the  executive  department.  Justice  Wilson  dismisses  the 
treaty-making  power  with  the  following  scant  consideration  : 

MUST  BE  KEPT  DISTINCT. 

“  The  President  has  power  to  nominate  and,  with  the  advice  and  con¬ 
sent  of  the  Senate,  to  appoint  ambassadors,  judges  of  the  Supreme 
Court,  and,  in  general,  all  the  other  officers  of  the  United  States.  On 
this  subject  there  is  a  very  striking  and  important  difference  between 
the  Constitution  of  the  United  States  and  that  of  Pennsylvania.  By 
the  latter  the  first  executive  magistrate  possesses,  uncontrolled  by  either 
branch  of  the  legislature,  the  power  of  appointing  all  officers  whose  ap¬ 
pointments  are  not,  in  the  constitution  itself,  otherwise  provided  for. 
On  a  former  occasion  I  noticed  a  maxim  which  is  of  much  consequence 
in  the  science  of  government— that  the  legislative  and  executive  powers 
be  preserved  distinct  and  unmingled  in  their  exercise.  This  maxim  I 
then  considered  in  a  variety  of  views,  and  in  each  found  it  to  be  both 
true  and  useful.  I  am  very  free  to  confess  that  with  regard  to  this 
point  the  proper  principle  of  government  is,  in  my  opinion,  observed  by 
the  constitution  of  Pennsylvania  much  more  correctly  than  it  is  by  the 
Constitution  of  the  United  States.  In  justice,  however,  to  the  latter,  it 
might  be  remarked  that,  though  the  appointment  of  officers  is  to  be  the 
concurrent  act  of  the  President  and  Senate,  yet  an  indispensable  prereq¬ 
uisite — the  nomination  of  them — is  vested  exclusively  in  the  President. 

“  The  observations  which  I  have  delivered  concerning  the  appointment 
of  officers  apply  likewise  to  treaties,  the  making  of  which  is  another 
power  that  the  President  has  with  the  advice  and  consent  of  the  Sen¬ 
ate.” — (2  Wilson’s  Works,  191.) 

It  seems  strange  that  this  total  failure  to  discuss  either  the  nature  or 
extent  of  the  treaty-making  power  in  a  formal  set  of  lectures  which 
7084 - 2 


18 


covered  the  whole  field  of  the  Constitution,  could  be  the  omission  of  one 
who  was  a  distinguished  member  of  the  Federal  Convention  of  1787, 
and  a  justice  of  the  Supreme  Court  of  the  United  States  in  1796,  when 
that  court  decided  the  important  case  of  Ware  v.  Hylton,  reported  in 
Third  Dallas.  In  fact  Justice  Wilson  delivered  a  short  concurring 
opinion  in  that  case.  Nevertheless,  he  ignores  a  great  constitutional 
question  that  had  been  ably  debated  in  Congress  when  Jay’s  treaty  was 
under  fire,  and  in  the  Supreme  Court  by  John  Marshall,  and  before  Jus¬ 
tice  Wilson  himself. 

In  1821  Mr.  Wert,  Attorney-General,  gave  an  official  opinion,  in 
which  he  said  : 

“  The  people  seem  to  have  contemplated  the  National  Government  as 
the  sole  organ  of  intercourse  with  foreign  nations.  It  ought  to  be 
armed  with  power  to  satisfy  the  fulfillment  of  all  moral  obligations, 
perfect  and  imperfect,  which  the  law  of  nations  devolves  upon  us  as  a 
nation.  In  this  respect  our  system  seems  to  be  crippled  and  imper¬ 
fect.” —  (1  Opins.  Attys.  Genl.,  392.) 

In  1825  William  Rawle,  a  distinguished  lawyer  of  Philadelphia,  pub¬ 
lished  A  View  of  the  Constitution  of  the  United  States.  Mr.  Rawle 
had  been  United  States  district  attoi*ney  for  Pennsylvania  under  Wash¬ 
ington,  and  had  been  offered  by  him  the  Attorney-Generalship  of  the 
United  States.  He  was  a  firm  supporter  of  the  Administration  of  John 
Adams.  In  discussing  the  treaty-making  power,  Mr.  Rawle  says  : 

MUST  BE  SOUGHT  FOE  IN  PKINCIPLE. 

“  The  most  general  terms  are  used  in  the  Constitution.  The  powers 
of  Congress  in  respect  to  making  laws  we  shall  find  are  laid  under 
several  restrictions.  There  are  none  in  respect  to  treaties.  *  *  * 

To  define  them  in  the  Constitution  would  have  been  impossible,  and 
therefore  a  general  term  could  alone  be  made  use  of,  which  is,  how¬ 
ever,  to  be  scrupulously  confined  to  its  legitimate  interpretation. 
Whatever  is  wanting  in  an  authority  expressed  must  be  sought  for  in 
principle,  and  to  ascertain  whether  the  execution  of  the  treaty-making 
power  can  be  supported  we  must  carefully  apply  to  it  the  principles 
of  the  Constitution  from  which  alone  the  power  proceeds.  *  *  * 

“  There  is  a  variance  in  the  words  descriptive  of  laws  and  those  of 
treaties.  In  the  former  it  is  said  those  which  shall  be  made  in  pur¬ 
suance  of  the  Constitution,  but  treaties  are  described  as  having  been 
made,  or  which  shall  be  made,  under  the  authority  of  the  United 
States. 

“  The  explanation  is  that  at  the  time  of  adopting  the  Constitution 
certain  treaties  existed,  which  had  been  made  by  Congress  under  the 
Confederation,  the  continuing  obligations  of  which  it  was  proper  to 
declare.  The  words  ‘  under  the  authority  of  the  United  States  ’  were 
considered  as  extending  equally  to  those  previously  made  and  to  those 
which  should  subsequently  be  effected.  But,  although  the  former  could 
not  to  be  considered  as  made  pursuant  to  a  constitution  which  was  not 
then  in  existence,  the  latter  would  not  be  ‘  under  the  authority  of 
the  United  States  ’  unless  they  are  conformable  to  its  Constitution  ” 

(p.  66). 

In  1833  Judge  Story  published  his  “  Commentaries  upon  the  Con¬ 
stitution  of  the  United  States,”  in  which  he  says  : 

“  The  power  to  make  treaties  is  by  the  Constitution  general,  and 
it,  Of  course,  embraces  all  sorts  of  treaties,  for  peace  or  war,  for  com¬ 
merce  or  territory,  for  alliances  or  success,  for  indemnity  for  injuries 
or  payment  of  debts,  for  the  recognition  and  enforcement  of  prin¬ 
ciples  of  public  law,  and  for  any  other  purposes  which  the  policy 
or  interests  of  independent  sovereigns  may  dictate  in  their  intercourse 
with  each  other.  But  though  the  power  is  thus  general  and  unre¬ 
stricted,  it  is  not  to  be  so  construed  as  to  destroy  the  fundamental  laws 
of  the  State.  A  power  given  by  the  Constitution  can  not  he  construed 
to  authorize  a  destruction  of  other  powers  given  in  the  same  instru¬ 
ment.  It  must  be  construed,  therefore,  in  subordination  of  it  and 
can  not  suoersede  or  interfere  with  any  other  of  its  fundamental  pro¬ 
visions.  Each  is  equally  obligatory  and  of  paramount  authority  within 
its  scope,  and  no  one  embraces  a  right  to  annihilate  any  other.  A 
treaty  to  change  the  organization  of  the  Government  or  annihilate 
its  sovereignty,  to  overturn  its  republican  form,  or  to  deprive  it  of 
its  constitutional  powers  would  be  void,  because  it  would  destroy 
what  it  was  designed  merely  to  fulfill — the  will  of  the  people.  Whether 
there  are  any  other  restrictions  necessarily  growing  out  of  the  struc¬ 
ture  of  the  Government  will  remain  to  be  considered  whenever  the 
exigency  shall  arise.”  (Sec.  1508.) 

Judge  William  Alexander  Duer,  of  New  York,  delivered  a  course  of 
lectures  on  the  constitutional  jurisprudence  of  the  United  States  at 
Columlv^  College  for  many  years.  In  1833  he  published  the  substance 
7084 


19 


of  his  lectures  under  the  title  of  “  Outlines  of  Lectures,”  etc. ;  and  in 
1843  he  published  a  revised  and  enlarged  work  on  the  same  subject 
entitled  “  Lectures  on  the  Constitutional  Jurisprudence  of  the  United 
States.”  In  this  last  and  most  complete  statement  of  his  views  Judge 
Duer  said  : 

can't  destroy  other  powers. 

“  More  general  and  extensive  terms,  also,  are  used  in  vesting  the  power 
with  respect  to  treaties  than  in  conferring  that  relative  to  laws  ;  and, 
while  the  latter  is  laid  under  several  restrictions,  there  are  none  im¬ 
posed  on  the  exercise  of  the  former,  notwithstanding  it  is  committed  to 
the  President  and  Senate,  in  exclusion  of  the  House  of  Representatives, 
and  is  executed  through  the  instrumentality  of  agents  delegated  for 
that  purpose.  And,  although  the  President  and  Senate  are  thus  in¬ 
vested  with  this  high  and  exclusive  control  over  all  those  subjects  of 
negotiation  with  foreign  powers,  which  in  their  consequences  may  af¬ 
fect  important  domestic  interests,  yet  it  would  have  been  impossible 
to  have  defined  a  power  of  this  nature,  and,  therefore,  general  terms 
only  were  used.  These  general  expressions,  however,  ought  strictly  to 
he  confined  to  their  legitimate  signification  ;  and,  in  order  to  ascertain 
whether  the  execution  of  the  treaty-making  power  can  be  supported  in 
any  given  case,  those  principles  of  the  Constitution,  from  which  the 
power  proceeds,  should  carefully  he  applied  to  it.  The  power  must,  in¬ 
deed,  he  construed  in  subordination  to  the  Constitution  ;  and,  however 
in  its  operation  it  may  qualify,  it  can  not  supersede  or  interfere  with 
any  other  of  its  fundamental  provisions,  nor  can  it  ever  he  so  inter¬ 
preted  as  to  destroy  other  powers  granted  by  that  instrument.”  (2d 
ed.,  228.) 

Probably  the  best  attempt  at  formulating  a  general  rule  for  the  exer¬ 
cise  of  the  treaty-making  power  is  that  framed  by  Mr.  Calhoun,  in  1851, 
in  his  “  Discourse  on  the  Constitution  and  Government  of  the  United 
States.”  It  reads  as  follows  : 

‘‘Although  the  treaty-making  power  is  exclusively  vested,  and  with¬ 
out  enumeration  or  specification,  in  the  Government  of  the  United 
States,  it  is  nevertheless  subject  to  several  important  limitations.  It 
is,  in  the  first  place,  strictly  limited  to  questions  inter  alios  ;  that  is, 
to  questions  between  us  and  foreign  powers  which  require  negotiation 
to  adjust  them.  All  such  clearly  appertain  to  it.  But  to  extend  it 
beyond  these,  be  the  pretext  what  it  may,  would  be  to  extend  it  beyond 
its  allotted  sphere,  and  thus  a  palpable  violation  of  the  Constitution. 
It  is,  in  the  next  place,  limited  by  all  the  provisions  of  the  Constitution 
which  inhibit  certain  acts  from  being  done  by  the  Government  or  any 
of  its  departments,  of  which  description  there  are  many.  It  is  also 
limited  by  such  provisions  of  the  Constitution  as  direct  certain  acts  to 
be  done  in  a  particular  way,  and  wThich  prohibit  the  contrary,  of  which 
a  striking  example  is  to  be  found  in  that  which  declares  that  ‘  no  money 
shall  be  drawn  from  tbe  Treasury  but  in  consequence  of  appropriations 
to  be  made  by  law.’  This  not  only  imposes  an  important  restriction 
on  the  power,  but  gives  to  Congress,  as  the  law-making  power,  and  to 
the  House  of  Representatives  as  a  portion  of  Congress,  the  right  to 
withhold  appropriations;  and  thereby,  one  important  control  over  the 
treaty-making  power,  whenever  money  is  required  to  carry  a  treaty  into 
effect,  which  is  usually  the  case,  especially  in  reference  to  those  of 
much  importance. 

MORE  IMPORTANT  LIMITATION. 

There  still  remains  another  and  more  important  limitation,  but  of  a 
more  general  and  indefinite  character.  It  can  enter  into  no  stipulation 
calculated  to  change  the  character  of  the  Government,  or  to  do  that 
which  can  only  be  done  by  the  Constitution-making  power,  or  which 
is  inconsistent  with  the  nature  and  structure  of  the  Government,  or  the 
objects  for  which  it  was  formed.  Among  which  it  seems  to  be  settled 
that  it  can  not  change  or  alter  the  boundary  of  a  State  or  cede  any 
portion  of  its  territory  without  its  consent.  Within  these  limits  all 
questions  which  may  arise  between  us  and  other  powers,  be  the  subject- 
matter  what  it  may,  fall  within  the  limits  of  the  treaty-making  power 
and  may  be  adjusted  by  it.  (Calhoun’s  Works,  I,  203.) 

This  definition  was  used  in  Hauenstein  v.  Lynham,  100  United  States, 
483,  and  in  People  v.  Gerke,  5  California,  381. 

Perhaps  the  ablest  and  most  accurate  law  writer  of  the  past  fifty 
years  was  Judge  Thomas  M.  Cooley,  of  Michigan.  He  always  undertook 
to  state  the  law  as  it ,  had  been  settled  by  the  decisions  of  the  courts. 
Writing  in  1880,  he  reached  this  conclusion  : 

“  The  President  has  power,  by  and  with  the  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators  concur.  The  Consti¬ 
tution  imposes  no  restriction  upon  this  power,  but  it  is  subject  to  the 
implied  restriction  that  nothing  can  be  done  under  it  which  changes  the 
7084 


20 


Constitution  of  the  country  or  robs  a  Department  of  the  Government 
or  any  of  the  States  of  its  constitutional  authority.”  (Constitutional 
Law,  3d  ed.,  p.  117.) 

A  more  extended  discussion  of  this  subject  is  found  in  the  late  work 
of  John  Randolph  Tucker  on  “  The  Constitution  of  the  United  States,” 
published  in  1899.  After  stating  the  question  to  be  “  Whether  the 
exclusive  power  of  treaty  making,  vested  in  the  President  and  Senate, 
is  unlimited  in  its  operation  upon  all  the  objects  for  which  a  treaty 
may  provide,”  he  gives  the  respective  contentions  with  respect  to  the 
power  ;  quotes  Vattel’s  saying  that  “  it  is  from  the  fundamental  laws 
of  each  state  that  we  must  learn  where  resides  the  authority  that  is 
capable  of  contracting  with  validity  in  the  name  of  a  state,”  and  con¬ 
cludes  as  follows  : 

‘‘A  treaty  therefore  can  not  take  away  essential  liberties  secured  by 
the  constitution  to  the  people.  A  treaty  can  not  by  the  United  States 
do  what  their  Constitution  forbids  them  to  do.  We  suggest  a  further 
limitation  :  A  treaty  can  not  compel  any  Department  of  the  Government 
to  do  what  the  Constitution  submits  to  its  exclusive  and  absolute  will. 

On  these  questions  the  true  canon  of  construction,  that  the  treaty-mak¬ 
ing  power  in  its  seeming  absoluteness  and  unconditional  extent,  is  con¬ 
fronted  with  equally  absolute  and  unconditional  authority  vested  in  the 
judiciary.”  (Vol.  2,  p.  725.) 

That  a  treaty  can  not  invade  the  constitutional  prerogatives  of  the 
legislature  is  well  illustrated  by  Dr.  Ernest  Meier,  a  German  author, 
who,  according  to  Mr.  Wharton,  has  given  to  the  subject  a  degree  of 
elaborate  and  extended  exposition  which  it  has  received  from  no  writer 
in  our  own  tongue.  | 

Doctor  Meier  was  a  professor  of  jurisprudence  in  the  University  of 
Halle,  and  gave  his  conclusions  as  follows  : 

POWER  NOT  ABSOLUTE. 

“  Congress  has,  under  the  Constitution,  the  right  to  lay  taxes  and 
imposts  as  well  as  to  regulate  foreign  trade  ;  but  the  President  and  the 
Senate,  if  the  treaty-making  power  be  regarded  as  absolute,  would 
be  able  to  evade  this  limitation  by  adopting  treaties  which  would  com¬ 
pel  Congress  to  destroy  its  whole  tariff  system.  According  to  the 
Constitution  Congress  has  the  right  to  determine  questions  of  naturali 
zation,  of  patents,  and  of  copyright.  But,  according  to  the  view 
here  contested,  the  President  and  Senate,  by  a  treaty  could  on  these 
important  questions  utterly  destroy  the  legislative  capacity  of  the 
House  of  Representatives.  The  Constitution  gives  Congress  the  right 
of  declaring  war.  This  right  would  be  illusory  if  the  President  and 
Senate  could  by  a  treaty  launch  the  country  into  a  foreign  war.  The 
power  of  borrowing  money  on  the  credit  of  the  United  States  resides 
in  Congress ;  this  power  would  cease  to  exist  if  the  President  and 
Senate  could  by  treaty  bind  the  country  to  the  borrowing  of  foreign 
funds.  By  the  Constitution  ‘  no  money  shall  be  drawn  from  the 
Treasury  but  in  consequence  of  appropriations  made  by  the  law  ;  ’  but 
this  limitation  would  cease  to  exist  if  by  a  treaty  the  United  States 
could  be  bound  to  pay  money  to  a  foreign  power.  *  *  *  Congress 
would  cease  to  be  the  law-making  power  as  is  prescribed  by  the  Con¬ 
stitution.  The  law-making  power  would  be  the  President  and  the 
Senate.  Such  a  condition  would  become  the  more  dangerous  from 
the  fact  that  treaties  so  adopted,  being  on  this  particular  hypothesis 
superior  to  legislation,  would  continue  in  force  until  superseded  by 
other  treaties.  Not  only,  therefore,  would  a  Congress  consisting  of 
two  houses  be  made  to  give  way  to  an  oligarchy  of  President  and 
Senate,  but  the  decrees  of  this  oligarchy  when  once  made  could  only  be 
changed  by  concurrence  of  President  and  of  senatorial  majority  of  two- 
thirds.” —  (Ueber  den  Abschluss  von  Staats  vertragen.) 

As  a  conclusion  to  this  resume  of  the  views  of  authors  and  pub¬ 
licists  upon  this  subject  the  following  review  by  Prof,  von  Holst,  the 
well-known  German-American  historian,  is  both  pertinent  and  in¬ 
structive  : 

CAN  NOT  BE  UNLIMITED. 

‘‘As  to  the  extent  of  the  treaty  power  the  Constitution  says  noth¬ 
ing,  but  it  evidently  can  not  be  unlimited.  The  power  exists  only 
under  the  Constitution,  and  every  treaty  stipulation  inconsistent  with 
a  provision  of  the  constitutional  law  is  ipsi  facto  null  and  void.  Simple 
and  self-evident  as  this  principle  is  in  theory,  yet  it  may  be  very  diffi¬ 
cult  under  certain  circumstances  to  decide  whether  or  not  it  has  been 
transgressed  in  fact.  Indeed,  the  chief  difficulty  arises  from  the  ques¬ 
tion  of  the  relation  of  the  treaty  power  of  the  President  with  the 
concurrence  power  of  the  Senate  bears  to  the  legislative  power  of 
Congress.  The  question  is  answered  by  saying  that  these  powers  must 
7084 


21 


be  coordinate,  for  treaties,  like  laws,  are  ‘  sovereign  acts,’  which 
differ  from  laws  only  in  form  and  in  the  organs  by  which  the  sovereign 
will  expresses  itself.  It  follows  from  this  principle  that  a  law  can  be 
repealed  by  a  treaty  (Foster  v.  Neilson,  2  Peters,  253)  as  well  as  a 
treaty  by  a  law  (The  Cherokee  Tobacco,  11  Wallace,  616).  If  a  treaty 
and  a  law  are  in  opposition,  their  respective  dates  must  decide  whether 
the  one  or  the  other  is  to  be  regarded  as  repealed  (Foster  v.  Neilson,  2 
Peters,  253,  314  ;  Doe  v.  Braden,  16  Howard,  635).  *  *  *  Neither  the 

principle  nor  the  correctness  of  these  conclusions  from  it  can  well  be 
disputed,  and  they  are,  at  any  rate,  valid  constitutional  law.  But  in 
spite  of  this,  it  must  be  admitted  that  the  doctrine  has  its  doubtful 
side  both  in  theory  and  practice.  It  must  be  called  at  least  an  anom¬ 
aly  that,  hy  the  ex  parte  action  of  the  President  and  two-thirds  of  the 
Senators  present  (who  may  be  only  a  minority  of  the  whole  Senate),  a 
law  can  be  repealed  the  passage  of  which  required  the  concurrence  of 
the  House  of  Representatives  with  the  Senate  and  President,  or  a  two- 
thirds  majority  of  each  House  of  Congress.  The  repeal  of  a  treaty  hy 
the  enactment  of  a  law  may,  however,  lead  the  more  easily  to  serious 
consequences,  because  the  incompatibility  of  the  law  and  of  the  treaty 
may  not  be  so  clearly  manifest  that  the  foreign  power  concerned  will 
immediately  take  notice  of  the  law.  It  is  in  nowise  inconceivable  that 
Congress  itself  might  know  nothing  of  what  it  had  done,  so  that  only 
after  a  long  time  would  the  fact  be  established  by  judicial  decision  that 
in  this  direct  manner  a  treaty  was  overthrown,  the  repeal  of  which 
had  not  been  contemplated  by  either  of  the  two  contracting  parties. 

“  On  still  another  side  of  this  question  of  the  direct  relation  between 
the  treaty  power  and  the  legislative  power  makes  it  difficult  to  fix  the 
limits  of  the  treaty  power.  It  is  certain  that  no  authority  granted  by 
the  Constitution  to  any  of  the  factors  of  government  can  be  drawn 
from  it  by  treaty,  for  that  would  be  a  change  of  the  Constitution,  and, 
as  such,  unconstitutional.  But  Congress  may  be  bound  by  a  treaty  not 
to  exercise  in  a  certain  way  a  power  belonging  to  it,  although  it  might 
exercise  it  in  that  way  if  not  bound  by  the  treaty.  The  freedom  of 
action  of  the  House  of  Representatives  can  thus  easily  he  restricted  by 
a  treaty  to  such  a  degree  that  the  restriction  must  be  admitted  to  be  a 
violation  of  the  constitution,  even  if  not  strictly  of  its  letter,  yet  still 
of  its  spirit.  Thus,  for  instance,  the  framers  of  the  Constitution  cer¬ 
tainly  did  not  wish  that  duties  should  be  fixed  in  a  way  repugnant  to 
the  views  of  the  House  of  Representatives,  and  yet  this  might  be  brought 
about  at  any  moment  by  a  commercial  treaty.  Of  course,  it  must  not 
be  inferred  that,  in  general,  there  should  be  no  commercial  treaties. 
But  Daniel  Webster  was  certainly  right  in  advising  his  countrymen  to 
consider  carefully  before  beginning  to  handle  questions  of  duties  in 
connection  with  treaties.”  (Constitutional  law  of  the  United  States, 
202.) 

CONFINED  BY  DECISIONS  OF  COURTS. 

The  text  of  a  sound  treatise  on  any  subject  of  law  is  based  upon  and 
confined  by  the  decisions  of  the  courts  upon  that  subject.  I  have  fol¬ 
lowed  this  historical  treatment  of  the  treaty-making  power  from  the 
Constitutional  Convention  of  1787  to  the  present  time,  purposely  quot¬ 
ing  any  direct  mention  of  the  decisions  in  order  that  we  might  see  what 
effect  those  decisions  had  from  time  to  time  upon  the  definitions  and 
descriptions  of  the  power  as  given  by  subsequent  writers.  The  result  is 
interesting  and  peculiar.  In  1802  Tucker,  the  first  author,  cited  no  au¬ 
thority  except  the  text  of  the  Constitution  ;  thirty  years  later  Story 
cited  Tucker,  Rawle,  and  Jefferson,  while  in  1880  Cooley  cites  Tucker 
and  Story,  as  herein  quoted,  in  support  of  his  text.  The  reason  for 
this  is  plain,  since  the  judicial  decisions  have  been  only  so  many  appli¬ 
cations  of  general  rule  to  specific  states  of  fact.  For  it  is  readily  seen 
that  while  many  of  the  decisions  contain  broad  general  statements  to 
the  effect  that  treaties  are  the  supreme  law  of  the  land,  there  is  always 
the  accompanying  qualification  that  it  must  be  a  constitutional  treaty 
in  order  to  be  so  considered. 

It  is  clear  that  there  may  be  an  unconstitutional  treaty,  just  as  there 
may  be  an  unconstitutional  act  of  Congress.  This  point  is  well  illus¬ 
trated  by  the  treaty  negotiated  in  1854  at  Caracas  by  the  United  States 
minister  and  the  Venezuelan  Government,  which  provided,  in  its  twenty- 
fifth  article,  that  in  case  a  citizen  of  either  country  should  accept  a 
commission  in  the  service  of  an  enemy  at  war  with  the  other  country 
he  should  be  deemed  a  pirate  and  so  punished.  Mr.  Marcy,  Secretary  of 
State,  promptly  repudiated  the  treaty,  which  was  satisfactory  in  other 
respects,  upon  the  ground  that  the  Constitution  provided  that  Congress 
should  define  the  crime  of  piracy  and  its  punishment,  and  that  it  could 
not  be  made  the  subject  of  a  treaty.  If  the  treaty  had  been  ratified, 
there  can  be  no  doubt  that  the  courts  would  have  sustained  Mr.  Marcy’s 
view. 


7084 


22 


Cooley  recognizes  the  right  of  the  House  of  Representatives  to  annul 
such  a  treaty  in  the  following  express  terms  : 

“An  unconstitutional  or  manifestly  unwise  treaty,  the  House  of  Rep¬ 
resentatives  may  possibly  refuse  to  aid  ;  and  this,  when  legislation  is 
needful,  would  be  equivalent  to  a  refusal  of  the  Government,  through 
one  of  its  branches,  to  carry  the  treaty  into  effect.  This  would  be  an 
extreme  measure,  but  it  is  conceivable  that  a  case  might  arise  in  which 
a  resort  to  it  would  be  justifiable.”  (Constitutional  Law,  3d  ed.,  175.) 

Some  of  the  opinions  go  further  and  expressly  declare  that  treaties, 
like  laws,  are  bound  by  the  provisions  of  the  Constitution.  Thus,  in 
1847,  in  the  License  Cases  (5  How.,  613),  Mr.  Justice  Daniel  said: 

“  By  the  sixth  article  and  second  clause  of  the  Constitution  it  is  thus 
declared  :  ‘  That  this  Constitution  and  the  laws  of  the  United  States 
made  in  pursuance  thereof  and  treaties  made  under  the  authority  of 
the  United  States  shall  be  the  supreme  law  of  the  land.’ 

“  This  provision  of  the  Constitution,  it  is  to  be  feared,  is  sometimes 
applied  or  expounded  without  those  qualifications  which  the  character 
of  the  parties  to  that  instrument  and  its  adaptation  to  the  purpose  for 
which  it  was  created  necessarily  imply.” 

IS  COINCIDENT  .WITH  RIGHTS  OF  STATES. 

“  Every  power  delegated  to  the  Federal  Government  must  be  ex¬ 
pounded  in  coincidence  with  a  perfect  right  in  the  States  to  all  they 
have  not  delegated  ;  in  coincidence,  too,  with  the  possession  of  every 
power  and  right  necessary  for  their  existence  and  preservation,  for  it 
is  impossible  to  believe  that  these  ever  were,  in  intention  or  in  fact, 
ceded  to  the  General  Government.  Laws  of  the  United  States,  in  order 
to  be  binding,  must  be  within  the  legitimate  powers  vested  by  the  Con¬ 
stitution.  Treaties  to  be  valid  must  be  made  within  the  scope  of  the 
same  powers,  for  there  can  be  no  authority  of  the  United  States  save 
what  is  derived  mediately  or  immediately  and  regularly  and  legiti¬ 
mately  from  the  Constitution.  A  treaty,  no  more  than  an  ordinary 
statute,  can  arbitrarily  cede  away  any  one  right  of  a  State  or  of  any 
citizen  of  a  State.” 

It  therefore  makes  little  difference  whether  the  power  is  restricted 
“  in  subordination  to  the  Constitution  and  can  not  supersede  or  inter¬ 
fere  with  any  of  its  fundamental  provisions,”  as  Judge  Story  puts  it ; 
or  to  “  the  principles  of  the  Constitution  from  which  alone  the  power 
proceeds,”  as  Mr.  Rawle  says ;  or  we  agree  with  Judge  Duer  that 
“  those  principles  of  the  Constitution  from  which  the  power  proceeds 
should  carefully  be  applied  to  it ;  ”  or  with  Justice  Field  that  the 
power  is  limited  “  by  those  restraints  which  are  found  in  that  instru¬ 
ment  against  the  action  of  the  Government  or  of  its  departments  and 
those  arising  from  the  nature  of  the  Government  itself  and  that  of 
the  States ;  ”  for  they,  in  substance,  are  all  equivalent  to  Cooley’s 
statement  of  the  rule  that  the  power  “  is  subject  to  the  implied  re¬ 
striction  that  nothing  can  be  done  under  it  which  changes  the  Con¬ 
stitution  of  the  country  or  robs  a  department  of  the  Government  or 
any  of  the  States  of  its  constitutional  authority.” 

Since  all  the  authorities  agree  that  the  power  must,  under  our  form  of 
government,  be  limited  in  some  way,  it  necessarily  follows  that  it  can 
and  must  be  limited  only  by  the  Constitution  which  created  the  power. 

So  we  find  the  usual  limitation  in  the  late  case  of  De  Geofroy  v. 
Riggs  (133  U.  S.,  258)  decided  in  1890.  The  court,  speaking  through 
Mr.  Justice  Field,  used  this  language  : 

“  The  treaty  power  as  expressed  in  the  Constitution,  is  in  terms  un¬ 
limited  except  by  those  restraints  which  are  found  in  that  instrument 
against  the  action  of  the  Government  or  its  departments,  and  those 
arising  from  the  nature  of  the  Government  itself,  and  that  of  the 
States.  It  would  not  be  contended  that  it  extends  so  far  as  to  author¬ 
ize  what  the  Constitution  forbids,  or  a  change  in  the  character  of  the 
Government  or  in  that  of  one  of  the  States,  or  a  cession  of  any  portion 
of  the  territory  of  the  latter,  without  its  consent.  But  with  these 
exceptions,  it  is  not  perceived  that  there  is  any  limit  to  the  questions 
which  can  be  adjusted  touching  any  matter  which  is  properly  the 
subject  of  negotiation  with  a  foreign  country.” 

treaty-making  power. 

In  the  actual  exercise  of  the  treaty-making  power  it  has  been  con¬ 
strued  to  extend  to  the  acquisition  of  property  belonging  to  the  citizens 
of  each  in  the  territory  of  the  other  :  (U.  S.  v.  Forty-three  Gallons  of 
Whisky,  93  U.  S.,  197)  ;  provisions  for  inheritance  by  aliens  (Hauenstein 
v .  Lvnham,  100  U.  S.,  489  ;  Geofroy  v.  Riggs,  133  U.  S.,  266  ;  Bohaud 
v.  Blze,  105  Fed.,  485;  People  v.  Gerke,  5 -Cal.,  381);  the  establish¬ 
ment  of  consular  tribunals  (In  re  Ross,  140  U.  S.,  463)  ;  to  enable 
aliens  to  purchase  and  hold  lands  (Chirac  v.  Chirac,  2  Wheat.,  259)  ; 

7084 


23 


to  create  a  judicial  system  (Forbes  v.  Scannell,  13  Cal.,  242)  ;  the  ac¬ 
quisition  of  territory  by  the  United  States  (Am.  Ins.  Co.  v.  Canter,  1 
Pet.,  511;  Philippine  cases,  182  U.  S.,  197;  183  U.  S.,  181);  the 
settlement  of  boundaries  between  States  (U.  S.  v.  Texas,  162  IJ.  S., 
38;  R.  I.  v.  Mass.,  12  Pet.,  725);  the  granting  and  accepting  of 
awards  for  injuries  (Frevail  v.  Bache,  14  Pet.,  97  ;  Bachman  v.  Law- 
son,  109  U.  S.,  660)  ;  and  the  conferring  of  citizenship  on  Indians 
(Cross  v.  Harrison,  16  How.,  164;  U.  S.  v.  Rhodes,  Fed.  Cas.  16,  151). 

I  have  not  attempted  to  cite  all  the  decisions  in  point,  hut  only 
some  of  the  leading  cases  that  support  the  statement.  It  will  be 
noticed  that  all  of  these  instances  are  properly  within  the  fair  exercise 
of  the  power,  and  neither  interferes  with  a  department  of  the  Federal 
Government  nor  robs  a  State — to  use  Judge  Cooley’s  phrase — of  its  con¬ 
stitutional  authority. 

It  is  hardly  necessary  to  cite  authority  to  show  that  the  Federal  Gov¬ 
ernment  is  one  of  enumerated  powers,  and  that  the  States  retain  control 
of  their  domestic  and  local  affairs.  But  if  it  be  thought  necessary,  the 
following  language  of  Mr.  Justice  Brewer,  in  the  current  number  of  the 
advance  sheets  of  the  United  States  Supreme  Court  Reports,  may  suf¬ 
fice.  In  referring  to  the  effect  of  the  thirteenth,  fourteenth,  and  fifteenth 
amendments,  Judge  Brewer  said  : 

“  Notwithstanding  the  adoption  of  these  three  amendments  the  Na¬ 
tional  Government  still  remains  one  of  enumerated  powers,  and  the 
tenth  amendment,  which  reads  ‘  the  powers  not  delegated  to  the  United 
States  by  the  Constitution  nor  prohibited  by  it  to  the  States  are  re¬ 
served  to  the  States  respectively,  or  to  the  people,’  is  not  shorn  of  its 
vitality.”  (Hodges  v.  United  States,  203  U.  S.) 

To  what  extent,  then,  may  a  State  control  its  public  schools  in  the 
admission  or  exclusion  or  separation  of  different  races  of  pupils? 

In  People  v.  Gerke  (5  Cal.,  381),  and  that  class  of  cases  which 
permit  aliens  to  inherit  contrary  to  the  provisions  of  State  laws,  it  was 
contended  that  the  treaty,  in  effect,  nullified  the  State  laws  upon  that 
subject.  But  in  the  Gerke  case  this  objection  was  answered  as  follows  : 

“  One  of  the  arguments  at  the  bar  against  the  extent  of  this  power  of 
treaty  is  that  it  permits  the  Federal  Government  to  control  the  internal 
policy  of  the  States,  and,  in  the  present  case,  to  alter  materially  the 
statutes  of  distribution.  *  *  *  I  think,  however,  that  no  such  con¬ 

sequence  follows  as  is  insisted.  The  statutes  of  distribution  are  not  al¬ 
tered  or  affected.  Alienage  is  the  subject  of  the  treaty.  Its  disability 
results  from  political  reasons  which  arose  at  an  early  period  of  the  his¬ 
tory  of  civilization,  and  which  the  enlightened  advancement  of  modern 
times  and  changes  in  the  political  and  social  condition  of  nations  have 
rendered  without  force  or  consequence.  The  disability  to  succeed  to 
property  is  alone  removed,  the  character  of  the  person  is  made  po¬ 
litically  to  undergo  a  change,  and  then  the  statute  of  distribution  is  left 
to  its  full  effect,  unaltered  and  unimpaired  in  word  or  sense.” 

FOREIGNERS  MERELY  TAKE  THEIR  OWN. 

Treaties  of  this  kind  do  not  confer  any  thing  or  right  upon  the  for¬ 
eigner  ;  they  merely  permit  foreigners  to  take  that  which  is  their  own. 
But  the  granting  to  unnaturalized  foreigners  the  right  to  attend  the 
public  schools  of  a  State,  either  with  or  without  charge,  is  something 
more.  Does  it.  in  Judge  Cooley’s  language,  “  rob  the  State  of  its  con¬ 
stitutional  authority,”  and  is  it  in  the  language  of  Justice  Field, 
within  those  restrictions  “  arising  from  the  nature  of  the  Government 
itself  and  of  that  of  the  States?”  Are  the  local  public  schools  of  a 
city,  maintained  exclusively  by  local  taxation  and  presumably  for  the 
exclusive  use  of  citizens,  “  properly  the  subject  of  negotiation  with  a 
foreign  country?”  (Geofroy  v.  Riggs,  133  U.  S.,  258.)  The  answers 
to  these  questions  all  turn  upon  the  nature  of  our  Government  and 
the  relation  of  the  State  governments  to  the  United  States  Government 
under  the  Constitution. 

It  may  be  considered  as  fairly  well  settled  that  the  establishment  of 
separate  schools  for  white  and  for  colored  children  does  not  violate  the 
constitutional  right  of  either  class  to  the  equal  privileges  and  immuni¬ 
ties  guaranteed  by  the  Federal  Constitution,  provided  equal  advantages 
are  provided  for  each  class.  (People  v.  Gallagher,  93  N.  Y„  438  ;  45 
Am.  Rep.,  232  ;  Cory  v.  Carter,  48  Ind.,  327  :  17  Am.  Rep.,  738  ;  McMil¬ 
lan  v.  School  Committee,  107  N.  C.,  609  ;  10  L.  R.  A.,  823  ;  State  v. 
McCann,  21  Ohio  St.,  198  ;  Martin  v.  Board  of  Education,  42  W.  Va., 
514  ;  Lehew  v.  Brummell,  103  Mo.,  546  ;  11  L.  R.  A.,  828  ;  State  v. 
Maryland  Institute,  etc.,  87  Md.,  643 ;  Roberts  v.  City  of  Boston,  5 
Cush.,  198.) 

Equality,  and  not  identity,  of  privileges  and  rights  is  what  is  guaran¬ 
teed  to  the  citizen.  If  the  right  claimed  be  not  guaranteed  by  the  Fed¬ 
eral  Constitution,  but  is  reserved  to  the  States,  it  is  difficult  to  see  how 
7084 


24 


the  Federal  Government  can  constitutionally  control  it  either  by  treaty 
or  otherwise. 

Likewise  it  has  been  repeatedly  decided  that  State  laws  requiring  sepa¬ 
rate  coaches  for  white  and  for  colored  passengers  on  railroad  trains 
within  the  State  violate  no  privilege  or  immunity  of  either  class  and 
places  no  badge  of  slavery  upon  the  colored  passenger. 

(L.,  N.  O.  &  T.  R.  Co.  v.  Mississippi,  133  U.  S.,  587  ;  Ex  parte  Plessy, 
45  La.  Ann.,  80  ;  18  L.  R.  A.,  639  ;  Plessy  v.  Ferguson,  163  U.  S.,  537  ; 
Civil  Rights  cases,  109  U.  S.,  3  ;  Ohio  Valley  R.  R.  Co.  v.  Lander,  104 
Ky.,  431.) 

Cases  of  the  class  of  Parrott’s  Chinese  case  (6  Sawyer,  349) — and 
there  are  many  of  them — are  not  in  point  and  do  not  come  up  to  the 
question.  The  laws  of  California  prohibited  the  employment  of  Chinese 
by  any  corporation,  and  Parrott,  the  president  of  a  mining  company,  was 
indicted  for  violating  the  law.  Upon  habeas  corpus  he  was  properly 
discharged,  because  he  had  a  perfect  right  to  hire  a  Chinaman  or  any 
other  kind  of  a  man.  Moreover,  the  court  held  that  the  Chinaman’s 
right  to  work  was  a  property  right  protected  by  the  fourteenth  amend¬ 
ment,  which  extends  not  only  to  citizens,  but  to  all  persons  within  the 
jurisdiction  of  the  United  States.  In  Parrott’s  case  California  at¬ 
tempted  to  act  under  an  unconstitutional  law  ;  in  the  school  cases  she  is 
quite  within  her  constitutional  rights. 

If  the  control  of  local  schools  can  not  be  taken  from  the  States  and 
cities  by  a  law  passed  by  both  Houses  and  approved  by  the  President, 
because  the  power  to  do  so  is  not  granted,  it  would  seem  that  the  dis¬ 
cussion  is  at  an  end,  for  if  the  power  is  wanting  it  clearly  can  not  be 
done  in  any  way,  much  less  by  the  President  and  the  Senate  only. 

And  of  this  limitation  of  power  all  nations  must  take  notice.  (Tay¬ 
lor’s  International  Public  Law,  secs.  158,  361,  364.) 

7084 


o 


